Du Bois v. Union Dime Sav. Inst.

FOLLETT, J. This is not an action brought by the bank against the two rival claimants of the sum on deposit to compel them to inter-plead, but it is a motion made, pursuant to section 820 of the Code of Civil Procedure, by the bank, the defendant in two actions brought by the claimants, to substitute Ellenora H. Decker, the plaintiff in the first action, now pending in the superior court, as a defendant in the place of the bank in the second action brought by Lavinia A. Du Bois against it. Lavinia A. Du Bois consents that Ellenora H. Decker be substituted as defendant in the place of the bank in this action. The defendant offers to pay into court, pursuant to section 820, Code Civ. Proc., or to hold, pursuant to section 115 of chapter 689 of the Laws of 1892, the sum claimed by Lavinia A. Du Bois, but it does not offer to pay into court, or to hold, subject to the final determination of the controversy, the sum which Ellenora H. Decker seeks to recover, which is $915.46, besides interest, more than the bank admits to be due from it. Section 820 of the Code of Civil Procedure is not a substitute for the action of interpleader, but is an additional and summary remedy afforded to defendants to compel rival claimants to be brought into the action. Beck v. Ryback, 9 How. Prac. 193; Cronin v. Cronin, 9 Civ. Proc. R. 137, 3 How. Prac. (N. S.) 184. The right of a defendant to compel rival claimants to be brought into an action by motion depends upon the same principles as the right to maintain an action of interpleader to compel rival claimants to litigate as between themselves. Though the relation between a savings bank and the owner of the credit be that of debtor and creditor, rival claimants “for the same fund,” or credit, may be interpleaded and compelled to determine, as between themselves, their respective rights to the fund. Laws 1892, c. 689, § 115 (the banking law). But the difficulty with granting the defendant the relief sought, under section 820 of the Code of Civil Procedure, is that these rival claimants do not seek to recover “the same fund,” credit, or sum. The amount which Ellenora H. Decker seeks to recover in her action being greater than the amount which the defendant admits to be due, it is not entitled to have her substituted in this action, brought by Lavinia A. Du Bois [399] to recover a less sum, which the defendant admits to be due from it. Railroad Co. v. Arthur, 90 N. Y. 234; Insurance Co. v. Odell, 50 Hun, 279, 2 N. Y. Supp. 873; Van Zandt v. Van Zandt (Sup.) 7 N. Y. Supp. 706; Sibley v. Society (Super. N. Y.) 3 N. Y. Supp. 8; Dodge v. Lawson (Super. N. Y.) 19 N. Y. Supp. 904; Bender v. Sherwood, 15 How. Prac. 258; Supervisors v. Seaburg, 11 Abb. N. C. 461; Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991; Id., 2 Silv. Ct. App. Cas. 341, 358, note; Chamberlain v. O’Connor, 1 E. D. Smith, 665; Patterson v. Perry, 14 How. Prac. 505; Moore v. Usher, 7 Sim. 383; Glyn v. Duesbury, 11 Sim. 139; Diplock v. Hammond, 23 Law J. Ch. 550, 27 Eng. Law & Eq. 202; Bridesburg Manuf’g Co.’s Appeal, 106 Pa. St. 275; Glasner v. Weisberg, 43 Mo. App. 214; Story, Eq. Pl. (10th Ed.) § 291; 2 Story, Eq. Jur. (13th Ed.) § 821 et seq.; 3 Pom. Eq. Jur. § 1323. Had the bank admitted that there was due from it a sum equal to that claimed by Ellenora H. Decker,—the largest sum,—then the rival claimants might have been compelled to litigate their claims as against each other. Koenig v. Insurance Co., 14 N. Y. St. Rep. 250, 14 Civ. Proc. R. 269; Progressive Handlanger Union No. 1 v. German Sav. Bank (Super. N. Y.) 7 N. Y. Supp. 3, 8 N. Y. Supp. 545; Yates v. Tisdale, 3 Edw. Ch. 71; Fargo v. Arthur, 43 How. Prac. 193. But we know of no authority authorizing an interpleader, by action or motion, when the stakeholder denies that the full amount demanded by one of the rival claimants is due. The rule deducible from the authorities is: In case A. is threatened with suit, or is sued, by. B. for $1,000, and by C. for $500 of the same fund, and A. admits that he holds $1,000, B. and C. may be compelled to interplead, but in case A. denies that he holds $1,000 and admits that he holds $500, he cannot compel B. and C. to interplead. The bank was not entitled to an order substituting Ellenora H. Decker as a defendant in its stead, under section 820 of the Code. The learned counsel for the bank now insists that the motion should have been granted under section 452 of the Code of Civil Procedure, which provides: “Sec. 452. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. * * *” The difficulty with this contention is that the motion was not made under the section last quoted. It appears, by the notice of motion, that relief was sought under section 820, and not under section 452, of the Code, and it does not appear that it was suggested at special term that Ellenora H. Decker might be brought in as a defendant under section 452, and it is too late to claim for the first time on appeal that relief should have been granted at special term under the latter section. The order must be affirmed, with $10 costs and disbursements. VAN BRUNT, P. J., and O’BRIEN, J., concur in result.