45 Misc. 346 | N.Y. App. Term. | 1904
The affidavit used on the motion presented a clear case for an order of interpleader, but the motion was denied upon the ground, as appears from the opinion of the court, that the City Court had no power to grant such an application, under the authority of Wells v. Corn Exchange Bank, 43 Misc. Rep. 377; 87 N. Y. Supp. 420, decided by the Appellate Term of this court in March, 1904.
In the case cited, the court held that after the granting of an order of interpleader the cause became one of equitable cognizance, and that since the City Court had no equity powers, the granting of such a motion would deprive that court of jurisdiction to proceed with the cause. When deciding the Wells case, the attention of the court does not appear to have been called to the fact that section 820 of the Code, was by express provision of the statute, made applicable to the City Court of New York (Code Civ. Pro., § 3347, subd. 4; Jacobs v. Lieberman, 51 App. Div. 542), and since it was competent to the Legislature to confer equitable jurisdiction upon the City Court either expressly or by necessary implication, the objection that the exercise of equitable powers would exceed the court’s jurisdiction cannot apply to such a case as this. We are of opinion, therefore, that the Wells case, so far as it decides to the contrary, should not be followed upon the present appeal, and that the views expressed by the learned judge in the opinion rendered in the court below, favorable to the motion, are clearly sound. We conclude that the order should be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs.
Freedman, P. J., and Fitzgerald, J., concur.
Order reversed, with ten dollars cost-s and disbursements, and motion granted, with ten dollars costs.
