the Supreme Court has, however, lately decided that a niece and sister of the insured, designated as beneficiaries in a life policy with a reservation clause, take no vested interest. They would clearly have had a vested interest if the reservation clause had not been included. It would seem to follow that a wife, made beneficiary in a life policy with a reservation clause, would not have a vested right either; hence she could not be said to come within the protection of sec. 52. The Supreme Court25 and the inferior federal courts, 26 following the Samuels case, have so interpreted the wife's interest. Referring to the wife's claim, based on sec. 52, Judge Hough has said,27 "The claim would have been good, had the wife been the owner of the policies; but she was not. No beneficiary removable by the insured in invitum could be." And it does not seem reasonable to construe the wife's rights in such a policy as vested, irrespective of statute. As before suggested, probably the very purpose for which reservation clauses are included, is to prevent the vesting of rights in the beneficiary. The judicial recognition of a vested right in the beneficiary of an ordinary life policy would seem sufficiently anomalous already, without being permitted to do violence to the clear, controlling intent of the insured. The interests of such a beneficiary and of the beneficiary of a mutual benefit certificate seem closely analogous.28 The weight of judicial opinion has refused to regard the wife's interest as vested.29

If the beneficiary has not a vested interest in the policy because of the reservation clause, has she any interest at all? Here, too, the courts have not been uniform in their interpretation. It has been held that the beneficiary gets nothing but a mere expectancy, analogous to that of a legatee under a will.30 Under this view, the beneficiary gets no interest of any kind in the policy unless the insured dies without having changed the beneficiary. Until the insured's death, all interest in the policy rests as completely in the insured as if he had made himself beneficiary. Obviously the insured may do whatever he will with the policy, so far as the beneficiary is concerned. If the policy has a cash surrender value payable immediately, creditors of the insured have the right to compel the insured to surrender the policy, and the beneficiary is helpless.31 A receiver in supplemen

23.

25Cohn v. Malone, 248 U. S. 450 (1919), affirming Malone v. Cohn, supra, n.

26 In re Samuels, 254 Fed. 775 (1918); In re Greenberg, 271 Fed. 258 (1921). In In re Jones, supra, n. 23, the court handed down a supplemental opinion immediately after Cohen v. Samuels was decided, reversing itself.

27 In re Samuels, supra, n. 26, at p. 776.

28Cavagnaro v. Thompson, 78 Misc. (N. Y.) 687 (1912).

29 Eltonhead v. Travelers' Ins. Co., 177 App. Div. (N. Y.) 170 (1917); 25 Cyc. 893. That she has a vested interest where she has agreed to pay, and has actually paid, the premiums: Matter of Wainman, 121 Misc. (N. Y.) 318 (1923). That she has a vested interest where the policy has been delivered to her: Jacobs v. Strumwasser, 84 Misc. (N. Y.) 28 (1914); Grems v. Traver, supra, n. 6. This latter principle seems questionable.

30 Mut. Ben. Life Ins. Co. v. Swett, 222 Fed. 200 (1915); Rawls v. Penn. Mut. Life Ins. Co. of Phila., 253 Fed. 725 (1918); Vance, Insurance, sec. 136; 19 Col. L. Rev. 78.

31 Clark v. Shaw, 91 Misc. (N. Y.) 245 (1915).

tary proceedings, standing in the shoes of the insured debtor, would have the same remedy."

32

Again, it has been held that the beneficiary's interest in a life policy containing a reservation clause is inchoate or contingent— a substantial right analogous to that of dower.33 These exact terms have not always been used, but the context of the opinions show their application in substance.34 Regarded in this light, the beneficiary's interest is a valuable property right. It can be destroyed only by a change of the beneficiary in the manner designated in the policy.35 While a trustee in bankruptcy might reach the cash value of the bankrupt's policy, regardless of the beneficiary, it would not follow that ordinary creditors or a receiver would have the same right. Under the Bankruptcy Act36 the trustee is vested with those powers of the bankrupt which the bankrupt might have exercised for his own benefit. The bankrupt's right to change the beneficiary is clearly such a power.37 But in the absence of such an express provision, neither creditors nor others taking over the insured's property for the benefit of creditors can compel the insured to exercise his power of changing the beneficiary.38 Of course, equity may order that to be done which ought in all justice to be done. But the occasion for the application of this equitable maxim ought to be considered as having arisen only when the debtor-insured has diverted his property towards the payment of premiums while insolvent.38a

The lower courts of New York have interpreted the beneficiary's interest in a policy with a reservation clause in both lights.39 It would seem that the "mere expectancy" view comes closer to the intent of the insured taking out such a policy.40 It seems hardly inferable that he meant to reserve for himself a mere power of appointment to be exercised only in the manner stipulated in the policywhich is the interpretation that would have to be given to the reservation clause if the beneficiary's interest were regarded as more than a mere expectancy. And yet, as a matter of public welfare, few will

32Ecker v. Myer, 118 Misc. (N. Y.) 356 (1922); ib. 443-reversed in 119 Misc. 375 (1922). In Lowenstein v. Koch, 165 App. Div. (N. Y.) 760 (1915), affirmed in 217 N. Y. 689 (1916), a judgment creditor instituted supplementary proceedings after the insured-debtor's death. Although the lower court denied recovery, it intimated that the creditor might have obtained relief if appropriate action had been taken during the debtor's lifetime. (p. 761).

33 Anderson v. Broad St. Bank, 90 N. J. Eq. 78 (1918); Chelsea Exchange Bank v. Travelers' Ins. Co., 173 App. Div. (N. Y.) 829 (1916).

34Ind. Nat. Life Ins. Co. v. McGinnis, 180 Ind. 9 (1913) ["defeasible, vested interest"]; Holder v. Prudential Ins. Co., 77 S. C. 299 (1907) ["vested right"]; Bacon, Life and Accident Insurance, sec. 379 ["conditional vested interest"]. 35 Johnson v. New York Life Ins. Co., 56 Colo. 178 (1914). 36 Bankruptcy Act of 1898, sec. 70a (3).

37Cohen v. Samuels, supra, n. 24.

38 Under C. P. A., secs. 793, 809, a debtor's "property" is vested in the receiver, and is subject to his demand. That the "powers" of a debtor are not included within the meaning of "property:" Chelsea Exchange Bank v. Travelers' Ins. Co., supra, n. 33; appellate court in Ecker v. Myer, supra, n. 32. See N. Y. Gen. Constr. Law, sec. 39.

38a In re Greenberg, supra, n. 26.

39

19 Supra, n. 31, 32, 33, 38.

40Vance, id. op. supra, n. 9a, at p. 359.

probably decry the adoption of that view, as followed in the principal case. It seems a harsh doctrine that will defeat a husband's provision for his family after his death, because of a reasonable, and perhaps even commendable, caution against a future change of circumstances. The penalty should be imposed only when the court is powerless to do otherwise. That situation would seem to arise solely in the case of bankruptcy.

Jacob Lewis Gold.

Practice: Joinder of parties and of causes of action.-Cowles v. Eidlitz, etc., 121 Misc. (N. Y.) 341 (1923) was a motion to consolidate two actions then pending in the Supreme Court of New York County. The plaintiff owned a house at 591 Park Ave. New York City. The defendants in the first action were the general contractor and the sub-contractor for foundation and excavation work in the construction of a building to the north. The plaintiff instituted the action to recover damages alleged to have been sustained by him by reason of injuries to his building caused by the failure of the defendants properly to shore up and protect it during the construction work by them. At that time construction had begun on an edifice to the south. New and increased damage appearing, the plaintiff began an action against the general contractor and the sub-contractor for foundation and excavation work in the construction of the building to the south. The defendants in the second action answered that the damage was due exclusively to the underpinning operations on the north side of the plaintiff's building. The motion for an order consolidating the two actions was granted, on the ground that all the defendants could have been joined originally as parties defendant in one action.

It is plain that in the new action there are at least two separate and distinct alleged causes of action against the two separate sets of defendants-each one based upon separate acts of each respective set. At common law counts setting up different causes of action against separate defendants could not be joined in one declaration. Sections 211, 212, and 213 of the Civil Practice Act modify this rule. These sections are taken practically verbatim from the English Practice rules. Despite early inconsistent, with predominatingly narrow, interpretations of the rules in England, it is now there settled that

***

41"The policy contains a clause authorizing the insured to change his beneficiary, a perfectly proper clause: she might predecease him, or desert him, or become unfaithful.* * *The proposition that he should be constrained against his will, by an order enforceable by imprisonment in the event of disobedience, to deprive his wife of her present interest in the policy seems contrary to public policy and to good morals. We are unwilling to give this effect to the statute, unless constrained to do so either by its language or by controlling authority:" Lacombe, J., in In re Hammel & Co., supra, n. 23, at p. 58. See also In re Orear, 189 Fed. 888 (1911). In Vance, Insurance, sec. 136, while the "mere expectancy" theory is regarded as the generally accepted one, it is predicted that the courts will seek to find a proprietary interest in the beneficiary of such a policy. And note see on principal case in 24 Col. L. Rev. 518. 'Confer English Practice Act, order 16, r 4, 5, 7.

several tort-feasors, though separately liable, may be joined as defendants. The joinder of several defendants in the same action for the purpose of obtaining relief severally or in the alternative is destined to be allowed not only where the several causes of action are exactly identical, but also where common questions of law or fact are involved in different causes of action, subject only to the discretion of the court to drop such parties as may be required in the interest of justice. The New York court, persuaded by English decisions, has now allowed the joinder in an action for tort of defendants against whom the plaintiff claims a right to relief jointly, severally, or in the alternative, in respect of, or arising out of, the same transaction or series of transactions, because the plaintiff **** is in doubt as to the person from whom he is entitled to redress;" because it is not necessary "that each defendant shall be interested as to all the relief prayed for, or as to every cause of action included* * *"'4 and because "*** judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities."5 The joinder of defendants is practically made to depend upon the express condition upon which plaintiffs may join-where the claims to relief arise out of the same transaction or series of transactions and common questions of law or fact are involved, making it desirable that such claims should be disposed of at the same time.

The procedural scheme intended to be adopted is to permit the joinder of plaintiffs or defendants on the same terms-where the respective claims arise out of the same transaction or series of transactions, and there is a common question of law or fact involved in the different claims, subject only to the discretion of the court at any opportune time to sever the actions if that be necessary to prevent injustice. It is enough that there is a set of circumstances raising common questions of law or fact, and it is convenient, fair and expeditious to try the whole matter at the same time. The joinder of parties plaintiff or defendant is to be permitted, in sound discretion, where common questions of law or fact would arise if several suits were brought, each upon a separate cause of action.

It is irresistible that this policy is one in respect of joinder of parties AND of causes of action. A suit, at least, any action at law, where on either side there is more than one party may raise the question of joinder of causes of action concurrently with that of joinder of parties. There is an intimate relation between joinder of parties and joinder of causes of action. Indeed, "a cause of action disconnected from parties plaintiff or defendant is an abstraction." The English decisions demonstrate that the joinder of parties sections in the English Practice rules contemplate the joinder of causes of action. The Legislature appreciated the interrelation, for it recog*See Re Beck, 118 L. T. R., 629 (1918); Payne v. British Time Recorder Co., L. R. [1921] 2 K. B. 1.

3Sec. 213. 4Sec. 212.

5Sec. 211.

6137 E. 66th St. v. Lawrence, 118 Misc. (N. Y.), 486, 494 (1922).

7See Compania Sansinena v. Houlder Bros. & Co. L. R. [1910] 2 K. B. 354; Sadler v. Great Western R. R., [1896] A. C. 450.

nized that Section 258 was affected by the adoption of the English scheme of joinder of parties, and, accordingly, it made the significant deletion, in that section, of the requirement that all causes of action joined in one complaint "affect all the parties to the action." Changes in other sections illustrate the apparent purpose to broaden procedural methods to correspond with the new joinder of parties provisions.9 The present consolidation section, under which the motion in Cowles v. Eidlitz was made, is especially significant. Formerly, actions could be consolidated when pending in the same court "in favor of the same plaintiff against the same defendant."10 Consolidation is now proper where it does not prejudice a substantial right." It would be strangely anomalous to permit the consolidation of actions which could not originally be joined. That is, at the present time, the right originally to join is as large as the right subsequently to consolidate. That the joinder of parties sections have necessitated the changes made simultaneously with their enactment seems clear, and the system they effect seems to be intended to be controlling. 12 Section 258, which has no English counterpart, however, still continues a definite limitation upon the character of causes of action which may be joined. It retains the artificial classification of the codes, adapted from the common law, which classification seems obsolete today. The section may be restricted to the case where a single plaintiff is suing a single defendant. This limitation upon its scope, however, seems indefensible. The omission by the Legislature of the phrase "affect all the parties to the action" from the text of the section, when it was incorporated into the Civil Practice Act, indicates that it was supposed to have some real connection with the problem of multiple parties. Moreover, as has been shown,

12

"The forerunner of Section 258 (Section 143, Code 1848) required that the causes united "equally affect" the parties to the action. A narrow interpretation of the terms resulted in an amendment, "equally" being dropped (sec. 167, Code 1849). The courts assumed that in cases of a legal nature "affect" meant "equally affect," however, and joinder in a case like Cowles v. Eidlitz was never allowed. That a liberal view might easily have been taken appears from a quotation from the North Carolina court, in Pretzfelder & Co. v. Merchants Ins. Co., 116 N. C. 491 (1895), where the plaintiff, after loss, suing on five separate insurance policies, joined as defendants the companies who are independently liable. It was objected that the actions joined did not "affect" all the parties to the action. The court said, at page 496 "If each company should be sued separately, not only would the same propositions of law arise and the same evidence be gone over in five different actions at an expense of five times the amount of court costs, and much needless consumption of the time of the courts, but as the trial would be before five different juries the loss might be assessed at five different amounts."

See for example C. P. A. secs. 96, 266.

10C. C. P. sec. 817.

11C. P. A. sec. 96.

12It seems, then, that at last all joinder problems are being brought under a common principle where multiple parties are involved. Granted that no substantial rights are being prejudiced, justice and administrative convenience govern joinder. Whether this was what the framers intended to accomplish by the corresponding code provisions is now academic in New York, but it cannot be doubted that this construction of the language of the new sections carries out better the spirit of code procedure than the construction put by the courts upon the old sections.