Barbato v. Metropolitan Life Insurance

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 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 benéfioiary. 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. Prae., rule 113). For this reason we do not reach the question *883of whether the attachment is superior to the rights of the beneficiary. (Appeal from certain parts of an order of Monroe Special Term, denying defendant’s motion for summary judgment.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.