Majority
p. 886
Mary E. Surnear, as Administratrix, etc., of John Surnear, Deceased, Respondent, v. The Provident Institution for Savings in Jersey City, Defendant, Impleaded with Annie E. Lozier, Appellant. Mary E. Surnear, as Administratrix, etc., of John Surnear, Deceased, Respondent, v. Seamen's Bank for Savings, Defendant, Impleaded with Annie E. Lozier, Appellant.
Headnote
Jury — action to recover chattel — right to jury trial.Appeal by the defendant, Annie E. Lozier, from two judgments in favor of the plaintiff, entered in the office of the clerk of Richmond county on March 27, 1909, and from Orders denying motions to strike cases from the calendar.
In each case judgment affirmed', with costs.
No opinion. íprschberg, P. J., Woodward and Jenks, JJ., concurred; Burr, J., read for reversal, with whom Thomas, J., concurred. ' .
(dissenting): I dissent solely upon the ground that the defendant Annie E. Lozier, the only defendant' appealing, is entitled as matter of right to . a jury trial. (Code C.iv. Proc. § 968.) Plaintiff states a cause of action against this defendant to recover a chattel, to wit, a bank book. Plaintiff also attempts to state a cause of action against the defendant banks to recover a sum of money
Dissent
p. 887
only. Whether these causes oí action may be united or not is not before this court. ' If there was an improper joinder, it was waived by omission to demur on that ground. The action is not an interpleader in equity. Such an action may only be brought by one who has a fund which it is willing to pay over but does not know to which of two rival claimants to make payment. Nor is it the case of where' the holder of a fund has been sued by one of the claimants and by motion has interpleaded the other and paid the money into court pursuant to the provisions of section 820 of the Code of Civil Procedure. This would give the action the character of a bill of interpleader. (Clark v. Mosher, 107 N. Y. 118 .) Inasmuch as the causes of action are separate and distinct and the only cause of action against the defendant appellant is one in which a jury trial is secured to her upon seasonable demand by constitutional provision, and inasmuch as the objection was properly taken to proceeding without a jury, this constitutes error for which the judgments should be reversed. Thomas, J., concurred.
Cases cited
- Clark v. Mosher 107 N. Y. 118 p. 887