Clark v. . Mosher

Rapallo, J. If the counsel for the defendant was right in the position which he took, at the Circuit, that this was an equity case triable by the court, the practice adopted by the trial judge in empanelling a jury and submitting to it a single question of fact, to be answered in the affirmative or negative, was correct. The judge was also right in holding that he had the power to disregard the finding of the jury on the question thus submitted, and to find the fact the contrary way; and the judgment for the defendant entered pursuant to his findings and conclusions was regular. (Carroll v. Deimel, 95 N. Y. 255.) The court at General Term held, on the motion to set aside that judgment, that the action was one at law, for the recovery of money only, in which the plaintiff was entitled to a trial by jury; that the judge consequently had no power to disregard the verdict and substitute his own findings, and that the judgment entered thereon was irregular. We are of opinion that the trial judge was right in holding, as claimed by the defendant, that the action was of an equitable nature and triable by the court. The plaintiff had no right of action at law against the defendant, and did not seek to recover any money from him. The money in controversy was in court, having been paid into court by a third party, the Phoenix Mutual Life Insurance Company, under an order made on the application of that company pursuant to section 820 of the Code. The plaintiff had brought an action at law against the company upon a policy of insurance and the company, *122 admitting its liabilities on the policy, set up that the defendant’s intestate also claimed the amount of the policy, and by this proceeding in the nature of a bill of interpleader, on payment of the fund into court, the plaintiff was required to substitute the defendant’s intestate as defendant, and the object of this action was to determine the conflicting claims of the plaintiff and the defendant to the fund in court. Heither party had any right of action at law against the other, but by this equitable proceeding, authorized by the Code, the Insurance Company, against whom both claimed a legal cause of action, was discharged, and they were brought together to litigate the question which of them had the better right to the fund in controversy. Ho right of trial by jury ever existed in such a case. The order of the General Term should be reversed and that of the Special Term affirmed with costs. All concur, except Peokham, J., not sitting. Ordered accordingly.