93 N.Y.S. 304 | N.Y. App. Div. | 1905
I think that the defendant cannot sustain its order of interpleader. The action is brought upon two certificates of deposit for $5,000 / each issued by the defendant; The certificates represent deposits .
The two certificates of deposit were transferrable. They were indorsed by the charterer to the owner, and without question represent a partial compliance with the requirement that there should either be a bond, or the bond of a surety company, or a deposit in cash with that owner. The plaintiff is the indorsee of that owner. The certificates were “ intended to represent moneys actually left with the bank for safekeeping, which are to be retained until the depositor actually demands them.” (Daniel Neg. Inst. [5th ed.] § 1698a.) They have the attributes of negotiable promissory notes. (Pardee v. Fish, 60 N. Y. 265; Frank v. Wessels, 64 id. 155; Matter of Baldwin, 170 id. 156.) The depositary became liable to deliver the deposit to any holder of the certificate to whom it was properly indorsed. (National Bank of Fort Edward v. Washington County Nat. Bank, 5 Hun, 605; appeal dismissed, 72 N. Y. 606; First National Bank v. Clark, 42 Hun, 16 ; Morse Banks & Banking [4th ed.], § 300.)
Section 820 of the Code of Civil Procedure is governed by the principles which applied to the old action of interpleader. ( Windecker v. Mutual Life Ins. Co., 12 App. Div. 73, 80, and authorities cited.) The basis of the defendant’s motion was an alleged claim of Newhall, as receiver of the depositor (the charterer of the steamship), and hence I must inquire whether as between the plaintiff and such receiver the defendant is a mere stakeholder for one or the other who claim the stake, and whether under the circumstances the defendant may acquit itself by a payment into court. (Bassett v.
Under all circumstances it is not enough that a claim has been made, but it must appear that the claim has some reasonable foundation so that the court can see the necessity of the shield sought for. ( Wells v. National City Bank, 40 App. Div. 498 ; Post v. Emmett, Id. 477; Lateer v. Prudential Insurance Co., 64 id. 423.) So.far as the restoration of the ship is concerned the receiver but deposes on information and belief, without further reference, that the amount required would be much less than $10,000, while he is opposed by an affidavit of the owner’s naval architect, who had a share in the designs for the ocean steamships St. Louis and St. Paul, and who supervised the building of the ocean steamships Si. Louis, St. Paul, Kroonland and Finland, who was familiar with the former and the
I think that the order must be reversed.
Hirschberg, P. J., Bartlett, Rich and Milléb, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.