La Femina v. Arsene

74 N.Y.S. 749 | N.Y. App. Div. | 1902

Goodrich, P. J.:

The court at Special Term, on motion, made permanent an injunction restraining the defendants Arsen Arsene and Yaughan Arsene from further proceedings in an action pending in the Municipal Court of the city of New York, borough of Manhattan, first district, in which the Arsenes are plaintiffs and La Femina is defendant. In that action the complaint alleged conversion of certain goods by La Femina, who denied the conversion and alleged that the property had been deposited with him as bailee by one Schiaffini. ■

In the present action the complaint prays for an injunction and receiver and a determination as to the party entitled to the possession of the goods, and is in the nature of an action of interpleader. The plaintiff contends that as no interpleader can be had in the Municipal Court his only remedy is by the present action. But by section 820 of the Code of Civil Procedure interpleader is allowed only in actions Upon contract, ejectment and replevin, in any court. Consequently the inability of the present plaintiff to ask. interpleader in the action in the Municipal Court is not sufficient ground for an injunction against the prosecution of the action.

If the property belonged to Schiaffini, the plaintiff has a good defense against conversion and can maintain it in the,action in the Municipal Court, without interpleader.

The order should be reversed.

All Concurred.

Order reversed,, with ten dollars costs and disbursements.