Scharff v. Supreme Lodge Knights of Honor — 89 N.Y.S. 168

Majority

p. 168

SCHARFF v. SUPREME LODGE K. H.

(Supreme Court, Appellate Division, First Department.

July 13, 1904.)

Headnote

1. Interpleader—Costs.

_ Where defendant was sued for a debt which it admitted owing, but the right to receive which was asserted by adverse claimants, it was not'entitled, on payment of the fund into court pursuant to an order 'of inter-pleader, to recover costs.

Appeal from Special Term, New York County.

Action by Emil F. Scharff against the Supreme Lodge Knights of Honor on a certificate of insurance. Defendant filed a verified motion for an order of interpleader, showing that the amount claimed by plaintiff was also claimed by Margaretta Scharff, and offering to pay the amount of the certificate into court on substituting Margaretta Scharff as defendant. From an order granting the motion for interpleader, and allowing defendant costs, plaintiff appeals.

Modified in part.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, PATTERSON, and O’BRIEN, JJ.

Emanuel S. Cahn, for appellant.

Henry A. Powell, for respondent.

We think this order should be affirmed, but defendant was not entitled upon such a motion to have costs awarded to it. The order accordingly should be modified by striking out the $10 costs, and, as so modified, affirmed, without costs.