Sibley v. Equitable Life Assurance Society , 18 N.Y. St. Rep. 834 ( 1888 )

Per Curiam.

The complaint demands judgment against the defendant the Equitable Assurance Company for the amount due under the policy of insurance set up in the complaint with interest thereon from the 1st of October, 1887.

The corporation defendant presented a petition to the court whereby it admits that the amount named is due under the said policy and that it has been due since October 1,1887 ; and alleges that when said amount became due, it was ready and willing to pay the same to the person rightly entitled thereto but that it is ignorant of the rights of the several parties to the action and cannot with safety pay the same to any person; on that petition the court ordered that the said corporation may-pay the amount due without interest into, the Mercan-, tile Trust Co. to the credit of this action and that upon said payment the said corporation defendant be relieved and 'discharged from all liability to the plaintiff or any of the defendants herein; that the policy be deposited in the custody of the court subject to use by either of the parties to the action under the order of the court without prejudice to any lien that any of the parties may so have thereon, and that the plaintiff and other defendants be restrained from prosecuting the action and instituting any other action against the corporation defendant on account of said policy.

We do not think that the court had power by an order to discharge the corporation defendant from liability to the plaintiff without payment of the amount which was due upon the policy and interest from the 1st October, 1887. This interest was, under the complaint in this action, as much a part of the demand of the legal owner of the policy of insurance as the amount required to be paid by the policy.

If the company desired to relieve itself from the obligation to pay interest, it could have commenced an action for an interpleader. Instead of commencing such an action the company, after having refused to pay the plaintiff, did nothing until it was sued and in the meantime retained the money. So if in point of fact the company has an equitable defense against plaintiff’s claim for interest, it must remain a party to the action and set forth such defense by answer.

As the case stands at present the order should only be granted on the payment into court of the amount admitted to be due with interest up to the time of payment.

The order appealed from should be modified by requiring the defendant to pay the sum of $10>142 with interest thereon from October 1, 1887, to the date of the payment of the principal sum.

The appellant should have ten dollars costs and disbursements of this appeal.