Bevier v. Schoonmaker

By the court, Miller, J. The plaintiffs were clearly entitled to the surplus moneys which remained in the hands of Hiram Sehoonmaker, upon the foreclosure sale, after the payment of his mortgage. This money certainly did not belong to Sehoonmaker. The plaintiffs demanded it of Sehoonmaker after the sale, and he refused to pay it to them, assigning no reason whatever for his refusal. Under such circumstances, an action could be maintained by the plaintiffs against Sehoonmaker, for the money thus unlawfully retained. And unless some good cause is assigned for the refusal to pay the plaintiffs when the money was demanded, there is no substantial reason why the defendant, Sehoonmaker, is entitled to costs out-of the fund, or why the plaintiffs should not recover costs of the suit which his refusal to pay over the money compelled the plaintiffs to institute. It is urged that the action was an equitable one, and comes within that class of cases where costs are allowed [421] to the defendant, payable out. of the fund which is sought to be recovered. It is undoubtedly'true that where there is a reasonable ground for contesting the claim of a party to a fund in the hands of another, the party holding it may bring and maintain an action in the nature of a bill of inter-pleader, for the purpose of settling the rights of the contestants between themselves. In the present case, if Schoonmalcer held the moneys for the benefit of contesting claimants who were interested, I think he would be justified in refusing to pay until their rights were ascertained and adjusted. Nor would it alter his relationship to the contestants, because he happened.to be sued before he had a fair opportunity thus to bring a suit for the proper disposition of the fund in his hands. He would stand in such an event precisely in the same position as if he had brought the suit himself. Before a-party is entitled to avail himself of such a rule when he holds moneys belonging to others, he .is bound when called upon for the money, to disclose the grounds upon which he claims to retain the moneys in his hands; when applied to by the lawful owner he is compelled to speak, and if he claims any such right, to state, it, as a. ground of his refusal, to pay. He cannot remain silent, or simply refuse, and afterwards assert that he only claimed to hold the moneys because there was another claimant, and he did not know which was the rightful owner. When the money was demanded of Schoonmaker by the plaintiffs, he did not place .his refusal upon any such ground. He gave no such reason. Had he done so, stating that there was contesting claimants, and that he was ready to pay as soon as their rights were settled, it would, no doubt, have altered very materially his position if a suit had afterwards been brought. .It is quite possible that the difficulty alleged might have been obviated in a manner which would have been entirely satisfactory to the defendant, and the costs and delay of a litigation thereby averted. At any rate, Schoonmaker then would [422] have been in a condition to say that he had only retained the money for the purpose of discharging a duty he owed to all the parties who claimed an interest in the fund. As it stands, it appears that he refused absolutely, without making a particle of excuse at the time, thus forcing the plaintiffs to bring a suit to recover the money.- After this suit was brought he made no offer to pay the money into court, or place it on deposit for the benefit of the parties interested, but interposed an answer, thereby increasing the expenses of obtaining the money, and in the meantime retaining the money in his own hands, for his own use and benefit. None of the judgment creditors appeared to contest the claim, and if he had simply desired to relieve himself from costs, I incline to think he could have done this by an appearance on the motion to the court for relief, without the delay incident to the interposition of an answer. Conceding to Schoonmaker all that is claimed by his counsel, and the correctness of his position in a-case where he had been free from fault, yet I think it must be admitted that he made a mistake in giving no reason for retaining the money when demanded of him by the plaintiffs, and that under such circumstances he retained it at his peril. Even if this were a case where the court was authorized to exercise a discretion as to the costs under the Code 306), I am not prepared to say that such discretion has not been fairly exercised by the judge who tried the cause. There was no absolute refusal; no appearance by any party to contest the plaintiffs' claim; and a judgment in favor of the plaintiffs, which was first in priority. Was he entitled to costs which had been caused by his own act and conduct ? Was he entitled to the use of' the money when he could have paid it into court ? Costs in cases of this character are not always chargeable upon the fund, and the parties who fail should usually bear the consequences of a defeat (Lawton agt. Sager, 11 Bard. 349); My opinion is that Schoonmaker has no claim for relief [423] against costs, and no ground for claiming that the costs should be paid out of the fund, or that he should not be charged with interest on the money held by him. The point was not taken on the trial, that the action was prematurely brought, and, I think, if it had been, would not have availed the defendant. After a careful examination of the points taken by the ■defendant’s counsel, I discover no error committed on the trial, and think the judgment should be affirmed, with costs.