Flanery v. Emigrant Industrial Bank — 23 Abb. N. Cas. 40

Majority

p. 40

FLANERY v. EMIGRANT INDUSTRIAL SAVINGS BANK.

N. Y. Common Pleas ; Special Term and Chambers,

May, 1889.

Headnote

Interpleader of adverse claimant to smings banlc deposit.] An application to require adverse claimants to interplead should not be denied merely because one of them is an executor or administrator, so that the other, although he might testify in his own behalf in his action against stakeholder, may be incompetent to do so in the interpleader suit against the executor or administrator, by reason of section 829 of the Code of Civil Procedure.^[1]

Motion to compel interpleader.

Mary Ann Flanery sued the Emigrant Industrial Savings Bank to recover moneys deposited with it by one Mar

p. 41

,-garet Kilfoyle, in her own name. She was now deceased; .and her administrator, Patrick Kilfoyle, claimed the fund.

Bichcvrd O’ Gorman, Jr., for the motion.

Ha/rt c& Price, opposed.

The application of the bank to inter-plead the administrator of Margaret Kilfoyle, deceased, as ■defendant, should be granted. The deposit was made in the name of the deceased, and the bank book was issued in that name. The plaintiff, ostensibly a stranger to the contract between the depositor and the bank, has brought this action, claiming to be the actual depositor. In such a case it he bank should be relieved and the rival claimants compelled to litigate the title to the deposit between themselves.

The fact that the plaintiff in an action against the bank ■could give evidence of personal transactions with the deceased, which she would not be permitted to testify to as against the administrator, is no ground for refusing the interpleader. The hardship would be suffered by the bank if the motion were denied and it were sued by the administrator, and as between the bank and this plaintiff the former is the innocent party and should not suffer.

Motion granted.