Erkins v. Tucker

were ready and willing to deposit the amount of rent “upon discharge from liability to either claimant.” The tenants thereupon paid into court the amount of rent and costs. At the same time Marie L. Jackson, styling herself an “intervener,” filed a so-called answer to the petition of the respondent, in which, after a denial of all the allegations of the petition, except the allegation of hiring by the respondent to said tenants, she averred, in substance, that on February 13, 1908, the respondent, in writing, assigned the lease, and other leases, made between himself and said tenants to her, which assignment contained this clause:

“And I further constitute the said Marie I». Jackson my attorney in fact to enter into possession of said premises, and in my name or otherwise to collect the rents- due under said lease, and in my name or otherwise to institute legal proceedings to recover the rents due and unpaid. This assignment is given as collateral security for the faithful performance of the covenants contained in a bond and mortgage, all bearing' even date herewith, executed by Henry M. Erkins and Mary P. Erkins, and is to become void upon the faithful performance of all of said covenants.”

She also alleged that said mortgage was to become due February 13, 1909; that she had caused a demand for the said June rent to be made upon Tucker and Vincent, tenants. She then set up the same statement of facts as a counterclaim, and asked that the petition be dismissed, with costs, and that judgment be rendered awarding her possession of the premises, and adjudging that she, as assignee, be entitled to said $100 and all rents until the payment of her mortgage, or that the tenants be authorized to remain in possession of said premises, upon payment by them to the clerk of the court of all rent, and that the clerk be directed to deposit all of said rent with some trust company to await the maturity of said mortgage, and, if said mortgage be not paid, to apply said rent to its payment. This answer was received and filed by the court, and a motion made to strike it out was denied, and the case set down for trial on June 29, 1908. On the last-named day the attorney for the respondent and the attorney for the so-called “intervener” appeared, and upon a second motion being made to strike out the answer the court reserved its decision, and upon July 1st granted said motion and entered a final order in favor' of the respondent, who thereupon obtained the amount of the rent aforesaid. The so-called “intervener” appeals.

It may first be remarked that there is no authority in the Municipal Court act (Laws 1902, p. 1486, c. 580) under which the tenants had a right to pursue the course taken by them. Section 187 of that act provides that a defendant, against whom an action'to' recover “upon contract or an action to recover a chattel” is pending, may, before answer, upon proof by affidavit that a person not a party to the action makes a demand upon him, and “upon notice to that person,” apply for an order to substitute that person, etc. This is the only section under which an interpleader is permitted, and applies only to actions upon contract or to recover a chattel. It is not applicable to summary proceedings. If, by reason of the assignment of the lease by the respondent to Jackson, she became entitled to the rent to the exclusion, of the rights of Erkins, the respondent, that would have been a de

fense to the respondent’s attempt to dispossess the tenants; but there exists no power in the Municipal Court to substitute another party as a defendant in summary proceedings, except as provided for in section 2244 of the Code, even upon notice, of' which no proof appears in this case.

It may also be observed that,' when the tenants paid the amount of rent into court, no further proceedings could be had therein, and no final order could be granted. “The remedy provided by section 2231 of the Code of Civil Procedure is intended to place the landlord in a position to compel payments of his rent or be restored to the possession of his premises, and when the proceeding has resulted in either of these ends it has accomplished all the Legislature intended.” Flewellin v. Lent, 91 App. Div. 430 , 86 N. Y. Supp. 919 ; Asbyll v. Haims, 38 Misc. Rep. 578 , 78 N. Y. Supp. 64 . The payment by the tenants of the rent into court was a voluntary payment by them. It inured to the benefit of the landlord, and became his the moment it was so paid to the clerk, and the proceedings should then have been dismissed. Whatever right thereto the so-called “intervener” had must be determined in another action. She was not one of the parties to whom the, right is accorded, under section 2244 of the Code, of interposing" an answer in a summary proceeding. Heuser v. Antonius (Sup.) 84 N. Y. Supp. 580 . She was not, and never had been, in possession of the demised premises, and she is praying for the trial of equitable issues, which is beyond the jurisdiction of the Municipal Court to grant, as that court has no equity powers.

Appeal dismissed,-with $10 costs.

MacLEAN, J., concurs.

I concur. The assignment of the rents is in terms as collateral. The debt is not due. There is no claim of default on the part of Erkins, the mortgagor, nor that the intervener has attempted any right to possess the premises.