147 N.Y.S. 998 | N.Y. App. Div. | 1914
The demurrer is upon the grounds that the complaint failed to state facts sufficient to constitute a cause of action, and that there is a defect of parties plaintiff in that Harold P. Brown is a necessary party to the action. A like demurrer to the original complaint interposed by the same defendant was sustained on a motion for judgment on the pleadings, and the order was affirmed by this court. (159 App. Div. 908.) Pursuant to the leave granted the complaint was amended, and the learned counsel for the appellant seems confident that it now states a cause of action against the Arbogast & Bastían Company
The plaintiff alleges that she is the owner of certificate No. 92 for eighty-two shares of the first preferred accumulative stock of the Union Typewriter Company, now the defendant the Remington Typewriter Company, which is in the possession of the Remington Company but is also claimed by the Arbogast & Bastian Company, which has no right, title or interest in or claim to or lien upon the stock. The difficulty with this complaint is the same as with the former complaint, and it is that the plaintiff who claims to own the stock and .brings the action to recover possession of the same has assumed to bring the action in the form of an interpleader and has joined the Arbogast & Bastían Company, against which she has no cause of action, as a party defendant. The further allegations of the complaint show that the Arbogast & Bastían Company asserts a right to the possession of the stock by virtue of a pledge thereof to secure a loan to the plaintiff’s husband, which the plaintiff alleges has been paid. The plaintiff alleged that
The Arbogast & Bastían Company is not a necessary party to the plaintiff’s action to recover possession of the certificate of stock. On the allegations of her complaint she is the owner and entitled to the immediate possession of the certificate of stock, and she demands judgment for such possession. The allegation that she has no adequate remedy at law can avail her nothing in these circumstances, for it is manifest that she has an adequate remedy at law, either in the form of an action of conversion or replevin. (See Ehrich v. Grant, 111 App. Div. 196.) The remedy by an action of interpleader is given only to the stakeholder and to afford him protection against adverse claims. (Code Civ. Proc., § 820a; Wenstrom Electric Co. v. Bloomer, 85 Hun, 389; Pouch v. Prudential Ins. Co., 204 N. Y. 281; Crane v. McDonald, 118 id. 648.) Likewise, where the action is brought by one of the claimants before an action for interpleader is commenced, a remedy to the stakeholder in the nature of an interpleader to have the adverse claimant substituted in his place and stead as a defendant and to discharge him from liability to either claimant on his paying into court the money claimed or delivering possession of the property or its value to such person as the court may direct is authorized, and in the event that the person thus originally sued disputes, in whole or in part, the liability asserted against him or claims some interest in the subject-matter of the controversy, he is authorized to apply for an order
It follows, therefore, that the judgment should be affirmed, with costs.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Judgment and order affirmed, with costs.