17 N.Y. St. Rep. 852 | City of New York Municipal Court | 1888
This is an action at law to recover money deposited with the defendant, a savings bank, by plaintiff. Their relation is that of debtor and creditor. Chapman v. White, 6 N. Y. 417; Downes v. Bank, 6 Hill, 297, A stranger to said defendant now (before.answer) claims, by a notice served, to be entitled to said money, and has forbidden any payment thereof by said bank to this plaintiff. Hence the bank asks for an order of interpleader, under section 820, Code Civil Proc. The plaintiff, the defendant, and said third party claimant all appeared by counsel on the motion, and such claimant also submitted a proposed answer, demanding said deposit as her property, and asking for an award thereof to her. This is a proper case for a motion to interplead, under said section 820, (Norton v. Trust Co., 27 Wkly. Dig. 22; Bruggemann v. Bank, 1 City Ct. R. 86; Wehle v. Bank, 8 Jones & S. 98; Barnes v. Mayor, 27 Hun, 240; Laws 1875, c. 371, § 25;) for the bank is put upon inquiry by said notice, and the fund in question may be impressed with a trust or latent ownership, which the defendant cannot disregard after notice received, (Baker v. Bank, 100 N. Y. 34, 2 N. E. Rep. 452, where it was held that a “bank, having notice, cannot appropriate the money to the debt of its depositor, even on the depositor’s consent, to the prejudice of the actual cestui que trust.") Said section 820 fully applies to the city court of Hew York. Section 3347, subd. 4, and Id. subd. 6; also, sections 3159, 3160, Code Civil Proc. The motion being proper in this court, it, if granted, must necessarily, allow the. case to proceed further in this court-; for the court cannot, without a trial, relinquish or throw oiit a cause properly begun and pending, or decline its continuance, (Alexander v. Benuett, 60 N. Y. 204, 207;) and upon the granting of the interpleader this court must therefore have implied power to try the cause thereafter in the manner according to law; else, after the payment into court under the order of interpleader, plaintiff would be tied up in the suspended action, and prevented from ever trying his suit; and, should he then sue in another court, he could there be met with a plea of “another like action pending, ” or the bank would have to bring elsewhere an equity interpleader, and pay the amount into court a second time, on plaintiff’s re