#### Louis Amberg et al., Plaintiffs, *v.*The Manhattan Life Insurance Co., Defendant.

(Supreme Court, New York Trial Term,

June, 1900.)

1. Life insurance — A wife’s interest, in a policy on her husband’s life, is attachable where it has become absolute.

Under a policy upon the life of a husband, by the terms of which an insurance company promises to pay the wife a sum certain on a day certain, she has, after that day, an absolute interest in the fund which her creditor may attach in the hands of the company, and where it refuses to surrender the fund after the creditor has recovered judgment, the latter may, with the sheriff, secure the fund by bringing an action in aid of the attachment.

*2.*Same — Parties.

The wife is not a party necessary to a complete determination of the controversy.

Action by judgment creditor and the sheriff of New York county in aid of an attachment after judgment.

*90Blumenstiel & Hirsch, for plaintiffs.

Holmes, Rapallo & Kennedy, for defendant.

McAdam, J.

The defendant issued its policy of insurance May 13, 1894, on the life of Emanuel Bourbon, whereby it agreed to pay to his wife, Blanche Bourbon, on May 24, 1899, the sum of $5,000. On August 31, 1899, the plaintiff Amberg commenced an action and procured an attachment against the property of Blanche Bourbon, the beneficiary named in the policy, which attachment was duly levied upon her interest in the policy and the moneys due thereon. On January 5, 1900, judgment was recovered in said action in favor of the plaintiff -therein against the said Blanche Bourbon, for $23,772.84. The present suit is by the judgment creditor and the sheriff of New York county, in aid of the attachment, to reduce into possession the attached property. Code Civ. Pro., §§ 655, 677; Dunn v. Arkenburgh, 48 App. Div. 518. Upon the conclusion of the trial the defendant moved to dismiss the complaint upon two grounds: (1) that the proceeds of the policy were not liable to attachment; (2) that the recovery of a judgment by the plaintiffs herein, and its payment, would be no protection to the defendant against an action by Blanche Bourbon, the beneficiary named in the policy. As to the first ground the court holds that as the policy had actually matured and become payable before the levy of the attachment, the defendant, at the time of such levy stood as a debtor to the beneficiary, and the funds owing were subject to the attachment levied thereon. Commercial Travelers’ Assn. v. Newkirk, 16 N. Y. Supp. 177; Kratzenstein v. Lehman, 18 Misc. Rep. 590, affd. 19 id. 600; Bolt v. Keyhoe, 30 Hun, 619, affd., 96 N. Y. 646; Crosby v. Stephan, 32 Hun, 478. The defendant insists that the money represented by the policy was exempt from attachment while it remained in its hands, though subject to the payment of her debts after it reached the beneficiary. It is difficult to perceive any logical ground for such a distinction. The right of the beneficiary to the fund being absolute at the time of the attachment, it was her property, subject to her control and transferable by assignment if she had chosen to make one. Judge Barker, who wrote the opinion of the court in Bolt v. Keyhoe, supra, after reviewing the authorities, said: “These cases simply decide, that a policy of insurance issued to a wife upon *91the life of her husband, is not assignable while he is living, and that her interest in the contract is not such that the same can be seized by her creditors while the contract remains executory. They do not reach or discuss the question whether moneys actually realized on contracts of insurance, after the death of the husband, can be reached by her creditors.” The contract of insurance in this instance had ceased to be executory, it had ripened into a debt due and collectible, and no condition could possibly arise that would excuse the insurance company from paying it over to any person authorized by law to receive it. The authorities relied on by the defendant, holding that the interest of a beneficiary in a life policy cannot be attached, are cases where the contracts of insurance were executory, and the policies had not matured. Baron v. Brummer, 100 N. Y. 372; Stokes v. Amerman, 121 id. 337, 341. The second ground assigned by the defendant for a non-suit is equally unavailing. The presence of Blanche Bourbon as a party is not necessary to a complete determination of the controversy. Code Civ. Pro., § 452. She may have no desire to be made a party. The defendant certainly made no effort to have her joined as such. The objection, to be available, ought to have been taken by answer or demurrer. O’Brien v. Glenville Woolen Co., 50 N. Y. 128, 135; Potter v. Ellice, 48 id. 321. If it had been so taken the plaintiff might, and probably would, have obviated the objection by bringing her in. If the beneficiary, or anyone on her behalf, had claimed the money, a motion by the defendant to interplead the claimant might have relieved the defendant from further litigation. She herself might have applied to the court to join her as a party if she had desired to be heard. But the propriety of joining or interpleading her as a party, was not suggested until the conclusion of the trial, and then only by motion to dismiss for failure to join her. This came too late. Upon the pleadings and proofs the plaintiff is entitled to judgment for $5,308.33.

Judgment for plaintiff.