Opinion
January 17, 1963
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order insofar as appealed from unanimously affirmed, without costs of this appeal to any party. Memorandum: Amberg v. Manhattan Life Ins. Co. ( 171 N.Y. 314) and Jackson v. Tallmadge ( 246 N.Y. 133, 137) cited by the Special Term Justice, apply only if section 15 Pers. Prop. of the Personal Property Law does not. ( Matter of Genessee Val. Trust Co. v. Glazer, 295 N.Y. 219.) That section applies only "if the parties to the trust or other agreement so agree." There is no proof in the record that Metropolitan has agreed or will agree to the optional form of payments requested by the beneficiary. This is a question of fact to be determined and developed upon trial. Furthermore, the motion of Tuosto was premature, inasmuch as issue had not been joined between the plaintiffs and her (Rules Civ. Prac., rule 113). For this reason we do not reach the question of whether the attachment is superior to the rights of the beneficiary.