46 Misc. 554 | City of New York Municipal Court | 1905
In May, 1904, the plaintiff David Greenblatt commenced this action against Leo Frankel to recover the value of goods sold and delivered by the firm of Mendelsohn and Weisholz, who were the plaintiff’s assignors. On the 15th of May, 1904, Herman T. Mendelsohn was, by an order of the Supreme Court, appointed receiver of the goods, chattels and credits of the firm of Mendelsohn and Weisholz, and duly qualified as- such receiver. On May 25, 1904, Mendelsohn, as receiver, commenced an action against Frankel to recover .$193.33, having previously been duly authorized to commence the action. Subsequently a motion was made in this action by Frankel to interplead Mendelsohn as receiver, as the defendant, and that he be .permitted to pay the amount in question to the city chamberlain of the city of Hew York. That motion was granted and, on June 14, 1904, the plaintiff in this action served a supplemental complaint upon the defendant Mendelsohn. Ho summons was served upon the defendant Mendelsohn and no order granting leave to serve a supplemental complaint was. made, but the attorney for the defendant Mendelsohn on June 14, 1904, admitted over his own signature
It will be observed that the order directed conformity to “ the usual practice of this Court.” Before determining, therefore, as to the regularity of the proceedings taken by the plaintiff it is necessary to determine what the usual practice is, after the entry of an order of interpleader. Section 820 of the Code of Civil Procedure provides for the making of an order of interpleader. This section was section 122 of the old Code of Procedure. The portion of the section relating to interpleader was enacted in 1851 (L. 1851, chap. 479) and was taken from the provisions of the English statutes establishing a summary and • convenient form of interpleader, designed for use in common-law courts.
The defendant having voluntarily appeared in the action and having waived the necessity for the plaintiff’s obtaining leave to serve a supplemental complaint, by accepting service of a copy of the supplemental complaint and retaining it and admitting its due and timely service, it became his duty to plead to the supplemental complaint within six days. This he failed to do. The defendant having failed to plead or to obtain any extension of time to plead the plaintiff was within his rights in entering judgment and in applying to the court for an order directing the payment of the fund deposited with the chamberlain to him. The practice of the plaintiff was not irregular or unauthorized, and as the defendant has offered no sufficient excuse for his own default, the court would not now he justified in opening his default and directing the repayment of a fund which was properly paid out over eight months ago. The motion is denied.
Motion denied.