Bishop v. Fitzgerald

Full title: MARGARET BISHOP, Plaintiff, v. IRENE FITZGERALD, as Administratrix of the…

Court: Supreme Court, Special Term, Herkimer County

Date published: Dec 31, 1947

191 Misc. 639 (N.Y. Sup. Ct. 1947)

78 N.Y.S.2d 126

Opinion

December 31, 1947.

Kernan Kernan for Aetna Life Insurance Company, defendant.

James P. O'Donnell for plaintiff.

MALPASS, J.

This is an application for an order permitting the defendant Aetna Life Insurance Company to give notice to the defendant, Irene Fitzgerald, as administratrix of the estate of Charles Stevens, that this action is pending and staying further prosecution of the action as provided in section 51-a of the Civil Practice Act.

The complaint and affidavits filed upon this motion establish the fact that one Charles Stevens, now deceased, was insured in a policy of group insurance and that the beneficiary designated in said policy was the plaintiff. Both the complaint and the affidavit of the attorney for the defendant assert that the defendant, Irene Fitzgerald, as administratrix of the estate of Charles Stevens, makes a claim to the proceeds of the said policy of insurance in her capacity as administratrix and as the mother of two infant children of the deceased.

It appears that the defendant Fitzgerald resides in the State of New Jersey and that she cannot with due diligence be personally served with process within this State and that although she has been served with a summons outside of the State she has not appeared or answered in the action. Defendant's contention that this court never obtained jurisdiction of the defendant Fitzgerald is unchallenged by the plaintiff and it would seem that a judgment herein would not be binding on the defendant Fitzgerald. ( Schoenholz v. New York Life Ins. Co., 197 A.D. 91; Hanna v. Stedman, 230 N.Y. 326.)

The defendant Fitzgerald has notified the defendant Aetna Life Insurance Company of her claim to the proceeds of said insurance policy. It appears that this action was brought without any collusion on the part of the defendant Aetna Life Insurance Company.

Under the facts existing herein the defendant Aetna Life Insurance Company is entitled to the relief sought and the motion is granted, without costs. ( Suarez v. Metropolitan Life Ins. Co., 180 Misc. 537.)

Settle order on notice.