Brennan v. Jarvis — 42 N.Y. St. Rep. 919

Majority

p. 919

Margaret M. Brennan, Adm’rx, Resp’t, v. Susan E. Hall et al. Sarah A. Jarvis, App’lt.^[1]

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

Interpleader—Laches .

An application to come in and be made a party defendant comes too late after an affirmance at general term, where the petitioner knew of the plaintiffs claims to the fund before the trial and was informed of the pendency of the action shortly after the trial.

Appeal from order denying application of the appellant to come in and be made a party to this action.

Woolsey Carmalt, for app’lt; Gilbert W. Minor, for resp’t.

This is an action of interpleader in respect to the proceeds of a certain bond and mortgage which have been paid into court to the credit of this action.

The defendants Hall and Clark, trustees under the last will and testament of W. A. Hall, claimed these proceeds as the absolute owners of the bond and mortgage in question by virtue of the assignment thereof to them, and denied any knowledge sufficient to form a belief as to any agreement having been made by their

p. 920

testator for the benefit of the plaintiff’s intestate. These issues were tried before the court at special term, and after hearing the proofs and allegations of the parties judgment was rendered in favor of the plaintiffs for the proceeds of said bond and mortgage. From this judgment the defendants. Hall and Clark appealed to the general term of this court, which was affirmed, and an appeal was taken to the court of appeals, and that appeal is still pending.

How one Sarah A. Jarvis makes this application to come in and be made a party to this action upon the ground that the defendants hold the bond and mortgage in question for her benefit, and not for the benefit of the plaintiff’s intestate.

It appears that prior to the trial of the action at special term the defendants were apprised of the claim of Sarah A. Jarvis, the petitioner, and upon that trial sought to defeat the plaintiff by showing not only title in themselves, but also title in the petitioner. This latter defense was ruled out upon the ground that, no such claim was set up in the answer. It further appears by the affidavit of one of the defendants that the defendants did not. inform Jarvis of the action or any of the issues or matters pending in this suit until after the judgment at special term, and the-petitioner states in her affidavit that she was not informed of thependency of the action until after the trial at special term; but. she nowhere states that she was not informed of the claims made: on behalf of the plaintiff’s intestate.

How, it appearing that the defendants have allowed this action to be tried, knowing of the claim of Sarah A. Jarvis, they are in no position to complain of any harm which may result to them by reason of allowing this action to proceed. Heither is the petitioner in a position to complain, because, after having been informed of her rights, she has allowed this case to go on, to be submitted to the general term, and to be decided without making any intimation whatever of her claim or her desire to be made a party to the action, and after the plaintiff has succeeded at special and general terms, she seeks to come in and reverse the judgments there rendered and have a new trial in order that her rights may be determined in this action.

What might have been the result of an application made promptly (and in view of the condition of the case the greatest diligence was necessary) it is not requisite here to determine. But having slept upon her rights, and having failed to make her application until after the argument of the appeal at general term and its decision, and,the taking of an appeal to the court of appeals, it seems to us that it would be depriving the plaintiff of the fruits of her diligence and victory to allow the petitioner to come in at this time and require a retrial of the issues presented by her answer. The application seems to be an attempt to procure a reversal of a judgment by the special term after it has been affirmed by the general term.

We think that the order should be affirmed, with ten dollars costs and disbursements.

Barrett and Andrews, JJ., concur.