Schildwachter v. Mayor of New York

The proceeding of which the order appealed from is the outcome was instituted by defendant as a motion for inter-pleader, under section 820 of the Code of Civil Procedure. The order, however, accomplished a very different result from that originally sought, for thereby the action was directed to be terminated, as against all parties concerned, upon defendant’s paying the plaintiff the amount of his claim, without interest or costs. In that interest and costs were thus disallowed, lies the appellant’s grievance. The claim in suit was for two months’ rent of certain premises leased by defendant from plaintiff’s assignor for use as a fire-engine house, for the amount of which rent demand was only made upon the proper officer, and the action instituted after an interval of six months. Two months after the commencement of the action this motion was made, upon the ground that one Annie

The order to show cause, upon which the motion was instituted, recited the fact that it was made upon “all the papers and proceedings herein,” and the order appealed from recited the order to show cause/ Hence the complaint in the action must be assumed to have been before the court, and, in the complaint, interest was demanded from appropriate dates. Thus, such interest was as much a part of plaintiff’s claim as any other item constituting it, and, the claim standing undisputed, he was entitled to interest, as of absolute right. It was therefore not to be disallowed, “however ■commendable the motive of the denial.” Peetsch v. Quinn, 7 Misc. Rep. 6 ; 57 St. Rep. 80 ; Sibley v. Assurance Co., 18 St. Rep. 834 . And in this regard the order is not to be supported. Failing the adverse claim, there was no further question but that defendant’s motion for interpleader could not prevail; it having accepted the ■claimant’s withdrawal, and abandoned the prosecution of the motion upon the original ground. The action was one at common law for the recovery of a sum certain, and no counterclaim had been interposed. The court could not, of its own motion, order a discontinuance. f Wilcox v. Daggatt, 15 Wkly. Dig. 208 . Nor do we find any grounds for the granting of the defendant’s motion without the imposition of costs as a condition thereto. The costs provided by statute are awarded upon principles of natural justice, that he who has, by his resistance, subjected another to the expense of litigation in the enforcement of a just demand, should make indemnity for the expense. Pars. Costs, p. 3, § 5 ; Report of Code Cotn’rs 1848, p. 208. And while a plaintiff has been permitted, on his own motion, to discontinue an action at law, without costs, where it appeared that the demand was not enforceable because the defendant was an infant, a bankrupt, or otherwise exempt, which facts were unknown to the plaintiff when the action was instituted, Park v. Moore, 4 Hill, 592 ; Smith v. Skinner, 1 How. 122 ; Cuyler v. Coats, 10 How. 141 ; Wellington v. Classon, 18 How. 10 ; Taaks v. Schmidt, 19 How. 413 ; Smith v. Britt, 8 Wkly. Dig. 76 ; Van Buren v. Fort, 4 Wend. 209 ; Amour v. Steinbrenner, 1 Paige, 82 ; Phoenix v. Hill, 3 Johns. 249 , or where, since the action was commenced, a change in the law exempted the defendant from liability, Gale v. Wells, 7 How. 191 ; Porter v. Jones, Id. 192 ,