226 A.D. 773 | N.Y. App. Div. | 1929
Judgment reversed upon the law and the facts, and a new trial granted upon proper pleadings, with costs to appellant. Defendant bank is not liable upon the bond of the former defendants North, to recover upon which this action was originally brought. Defendant bank claimed an interest in the fund, and by an order of interpleader the Norths were relieved from further' liability upon payment into court, and defendant bank was brought in as a party defendant. Assuming payment by the Norths, but concerning which the record is silent, it was the proper practice for plaintiff to serve a supplemental complaint setting forth the substitution of the new defendant, the dismissal of the original defendants, the deposit of the amount claimed, and such other appropriate and additional facts as may be necessary to maintain the action, as, for example, that the substituted defendant makes claim to the money deposited. (Sayer v. Beirne, 78 App. Div. 491.) Disregarding this rule of practice, plaintiffs proceeded upon the original theory, ignored the payment into court by the Norths, and the money judgment from which the defendant appeals represents the original liability of defendants North, with interest and costs, and is clearly erroneous. In view of this decision the appeal from the order denying motion for resettlement is dismissed. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, J.J., concur.
