p. 285Gennaro La Femina, Respondent, v. Arsen Arsene and Vaughan Arsene, Trading under the Firm Name of “A. Arsene & Son,” Appellants, Impleaded with Pellegro Schiaffini.Headnote
Interpleader — action for, in which an injunction to restrain an action in a Municipal Court for conversion is asked, for.The members of the firm of A. Arsene & Son brought an action in the Municipal Court of the city of New York for the conversion of certain goods against one La Femina who denied the conversion and alleged that the property had been deposited with him as bailee by one Schiaffini. Thereafter La Femina brought an action in the nature of an action of interpleader in the Supreme Court • against the members of the firm of A. Arsene & Son and Schiaffini, in which he prayed for an injunction restraining the prosecution of the action in the Municipal Court, the appointment of a receiver and the determination of the party entitled to the possession of the goods.
Held, that an order restraining the prosecution of the action in the Municipal Court until the determination of the Supreme Court action should be reversed;
That, as, under the terms of section 820 of the Code of Civil'Procedure, inter-pleader in the Supreme Court is allowed only in actions upon contract, ejectment or replevin, the inability of La Femina to obtain an interpleader in the Municipal Court was not a sufficient ground for an injunction restraining the prosecution of the action for conversion therein;
That if the property belonged to Schiaffini the plaintiff had a good defense to the Municipal Court action which he could maintain without interpleader.
Appeal by the defendants, Arsen Arsene and another, trading under the firm name of “ A. Arsene & Son,” from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of December, 1901, enjoining said defendants from taking any further proceedings in an action brought by them against the plaintiff in the present action until the determination of the present action.
Jacob Fromme, for the appellants.
Walter Thorn, for the respondent.
The court at Special Term, on motion, made permanent an injunction restraining the defendants Arsen Arsene and Yaughan Arsene from further proceedings in an action pending in the Municipal Court of the city of New York, borough of Manhattan, first dis
p. 286trict, in which the Arsenes are plaintiffs and La Femina is defendant. In that action the complaint alleged conversion of certain goods by La Femina, who denied the conversion and alleged that the property had been deposited with him as bailee by one Schiaffini. ■
In the present action the complaint prays for an injunction and receiver and a determination as to the party entitled to the possession of the goods, and is in the nature of an action of interpleader. The plaintiff contends that as no interpleader can be had in the Municipal Court his only remedy is by the present action. But by section 820 of the Code of Civil Procedure interpleader is allowed only in actions Upon contract, ejectment and replevin, in any court. Consequently the inability of the present plaintiff to ask. interpleader in the action in the Municipal Court is not sufficient ground for an injunction against the prosecution of the action.
If the property belonged to Schiaffini, the plaintiff has a good defense against conversion and can maintain it in the,action in the Municipal Court, without interpleader.
The order should be reversed.
All Concurred.
Order reversed,, with ten dollars costs and disbursements.