43 Misc. 377 | N.Y. App. Term. | 1904
This is an appeal from an order denying a motion to interplead one Lena Helene in an action brought in the City Court of the city of Hew York.
It appears that one Fred J. Shalek had on deposit in the defendant bank the sum of $304.80, which he duly assigned to the plaintiff on the 30th day of January, 1904. When the plaintiff applied to the bank for the money the bank refused to pay on the ground that an action in the Supreme Court had been brought against it by the said Lena Helene to recover the said money, in which suit the said Shalek was also a party defendant. Thereupon the plaintiff brought this action to recover the identical money which was claimed by Helene in the action brought in the Supreme Court. At this juncture of affairs two courses were open to the defendant bank. It might have paid the money to either claimant, in which event it would have been compelled to defend against the other, or it might have asked for an order of interpleader, which it did. The learned court below, in denying the motion, states in its opinion that “ the claim of Lena Helene presents no question calling for an interpleader.”
I cannot agree with this contention. The record shows that the summons in the Helene action was served on the defendant bank at eleven o’clock and five minutes on the
“ From the general nature of these adverse claims, the plaintiff should not be called upon to settle the controversy, by paying one party and exposing itself to an action from the other.” Citing cases.
I am, therefore, of the opinion that, although this is a proper case for allowing an interpleader, the application for it should be made in the action brought by the judgment creditor Helene in the Supreme Court, as the granting of the motion for the interpleader in the City Court would have the effect of converting the plaintiff’s action at law into one in equity (Clark v. Mosher, 107 N. Y. 118; Dinley
To secure a proper disposition of the matter, the order appealed from should be affirmed, without costs, with a stay of further proceedings in the action, except such as may be necessary to carry into effect the determination of this court on this appeal, with leave to the defendant bank to make an application for an interpleader to the Supreme Court within ten days after entry in the City Court of the judgment upon this appeal. In case the defendant bank fails within the time specified to apply to the Supreme Court for an order of interpleader, the stay will be vacated and the order appealed-from will be affirmed, with costs.
Freedman, P. J., and Scott, J., concur.
Order affirmed, with costs.