Feldman v. Grand Lodge.

tions of the defendant; that the said claim is made without collusion, and the defendant does not know to which of said parties the beneficiary fund due on the death of Anton Dobler, deceased, can safely be paid.

Guardians ad litem were not appointed for the infants whom it is asked in the notice of motion to be made parties, but the notice of motion is directed to them, and it is recited in the order made upon the hearing of the motion that John Hardy appeared as attorney for them, and the notice of appeal served by plaintiffs' attorney is addressed to Mr. Hardy, as such attorney for said parties. It does not appear from the printed papers on appeal that any notice of motion was ever served upon said infants.

J. George Flammer, for plaintiffs, ppellants.

Leroy Andrus, for defendant, respondent.

O'BRIEN, J.-This action was commenced to recover the sum of $2000 under a beneficiary certificate issued by the defendant on the life of one Anton Dobler.

The plaintiffs' right to recover is based upon the fact that they are the ones designated as the beneficiaries in the policy. The defendant, while admitting its liability, seeks to have substituted as defendants, in its place and stead, by an order of interpleader, the wife and minor children of Dobler. Upon the defendant's own affidavits as to the extent of the claim advanced adversely to plaintiffs, it is extremely doubtful, to say the least, if any such state of facts is presented showing a right to an order of interpleader. The rule is now settled that there must be some reasonable foundation for a claim asserted to entitle a defendant, while admitting its liabil ity, to have such claimants substituted by order of interpleader. In other words, the question upon a motion of this character is as to whether or not there is a reason

Feldman v. Grand Lodge.

able doubt as to the safety of the stakeholder in paying over the money. As stated by Mr. Justice VAN BRUNT, in Nassau Bank v. Yandes (44 Hun, 55), such reasonable doubt must be supported by proof raising a question upon which the court may pass judicially, and the claim must have some foundation in law.

Assuming, however, that it were in other respects a proper case for an order of interpleader, we think upon other grounds, apparent upon the record, the order should not be granted.

Section 820 of the Code of Civil Procedure provides, in terms, that a defendant may apply to the court, upon notice to the plaintiff and to the person making the claim, for an order of substitution or interpleader.

Here the defendant's affidavits and notice of motion show that the application is to the court for an order that Babette Anna Dobler, Charles Dobler, Anton Dobler, Albert Dobler, Tillie Maehlein, Herman Dobler, Elizabeth Dobler and William Dobler be interpleaded in the action. Of these persons four are infants, upon whom service of the notice of motion was not made. The order appealed from, however, without such notice having been given, required the substitution, in addition to Babette Anna Dobler, of all the children, including these infants. In view of the express provision in section 820 of the Code requiring notice, this could not be done. This provision is most reasonable and should be observed, for otherwise persons without notice might be injected into a lawsuit without desiring it, and against the protest of the plaintiff.

Another omission in the order, as shown by Mr. Justice INGRAHAM, was the failure to provide for payment into court, in addition to the principal, the interest on that sum. The order appealed from requires that the entire principal should be deposited into court, although, in respect to the claim of one of the plaintiffs, Frank Joseph Antou Dobler, who claims one half, no adverse

Feldman v. Grand Lodge.

claim is suggested, and in the absence thereof it would seemingly have been the proper thing to have directed the payment of one half of the amount to him, though the court might have been of opinion that as to the balance it should have been deposited.

For these reasons we are of opinion that the order appealed from should be reversed, with $10 costs and disbursements.

VAN BRUNT, P.J. (concurring).-I dissent from opinion of INGRAHAM, J. (post). I am of the opinion that parties should not be brought in without notice to them.

INGRAHAM, J. (dissenting).-By the certificate issued to Anton Dobler, the sum of $2000 was payable upon his death to Babette A. Dobler, his wife. Subsequently, Anton Dobler revoked the direction under which this certificate was issued, and directed the payment of the beneficiary fund to be made to Charles Dobler, his son. Subsequently, Anton Dobler revoked the last direction and directed the payment of the fund to be made to Frank Joseph Anton Dobler and Tillie Dobler, his son and wife, share and share alike. It also appeared that Tillie Dobler was not the lawful wife of Anton Dobler, and that Babette A. Dobler, as the wife of Anton Dobler, claims the fund and has demanded payment thereof. There is no intimation that there is any collusion between the defendant and the claimants of this fund, and we think that a proper case is made out for an interpleader and that the claimants be substituted as defendants in this action upon payment into court of the amount claimed. The complaint, however, demands judgment for the sum of $2000, with interest thereon from December 28, 1891, and the order provides that the defendant pay to the chamberlain of the city of New York, to the credit of this action, the sum of $2000 within ten days from the entry of the order. Before

Feldman v. Grand Lodge.

the defendant can be discharged from liability it must pay into court the amount claimed by the plaintiff, and the order must, therefore, be modified so that the defendant pay into court, in addition to the sum of $2000, interest thereon from the 28th of December, 1891, to the date of payment.

The objection is also made that as some of the alleged claimants are infants and were not represented by guardian, and no notice of the application was shown to have been served upon them, the order would not be binding upon them. But it does not appear that any of the infants have any claim to this fund.

All that appears is that the widow of Anton Dobler has made some claim that in a certain contingency her children would be entitled to a portion of the fund.

Notice was given to Babette A. Dobler, the person who claimed the fund, and she having appeared on the motion and consenting to the order, the court had power to substitute her as the defendant in the action upon the payment into court of the amount claimed in the complaint, and on such a motion the court also had power to join as a party defendant any person who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant for the complete determination or settlement of the question involved therein (Code Civ. Pro., § 427).

The plaintiff cannot be injured by the failure of the defendant to give notice to the infants and having a guardian ad litem appointed for them, as in case the defendants fail to answer the amended complaint they will be entitled to the fund.

I think, therefore, that the order appealed from should be modified by substituting for the sum to be paid into court the sum of $2000 and interest thereon from December 28, 1891, to the date of the payment, and that upon such payment being made the summons and complaint in this action be amended by inserting

McShane v. Pinkham.

the individuals substituted as defendants in place of the present defendant, and that the plaintiff be allowed to make and serve an amended summons and complaint accordingly, and as thus modified the order should be affirmed, without costs to either party.

MCSHANE, JUDGMENT CREDITOR, v. PINKHAM, JUDGMENT DEBTOR.

CITY COURT OF NEW YORK, SPECIAL TERM; JUNE, 1892.

§ 2447.

Proceedings supplementary to execution—when money deposited in lieu of bail cannot be reached.

Money deposited with the city chamberlain in lien of bail to secure the release from imprisonment of one arrested upon indictment for a criminal offense, who had not and never had any interest in the money, cannot be applied to the payment of a judgment recovered against him in an independent civil action; it does not become his by such deposit,* and an order should not be granted in proceedings supplementary to execution directing the city chamberlain to pay a part of the money to the sheriff to be applied to the satisfaction of such judgment.

Eagan v. Stevens (39 Hun, 311), Gilbert v. Laidlaw (102 N. Y. 588) distinguished.

(Decided June, 1892.)

Motion by the judgment creditor for an order directing the chamberlain of the city and county of New York to pay to the sheriff of the city and county of New York a part of certain moneys on deposit with him.

*See Fraser v. Ward, 6 N. Y. Civ. Pro. 11.