Wehle v. Bowery Savings Bank — 40 N.Y. Super. Ct. 97

Majority

p. 97

HENRY WEHLE, Plaintiff and Appellant, v. THE BOWERY SAVINGS BANK, Defendant and Respondent.

Headnote

ORDER OF INTERPLEADER.

Where the affidavit on which the order was made was sufficient to authorize the same under § 123 of the Code, and the opposing affidavits do not show any real grounds for refusing such order, the order should be affirmed.

The validity of an order of another court, annexed to the moving papers, in support ,of the motion, could not be determined on

p. 98

the motion, but was a question to be determined on the trial of the action.

Collusion between the party to whose rights plaintiff succeeded and the party claiming under such an order of another court, was not sufficient ground for refusing such the order of Interpleader, so long as the party applying for the same did not appear to be a party to such collusion.

Before Freedman and Speir, JJ.

Decided December 6, 1875.

Appeal from an order of Interpleader made by the special term under § 122 of the Code.

Simon Sultan, of counsel for appellant.

Carlisle Norwood, Jr., of counsel for respondents.

The affidavit on which the order appealed from was made, was sufficient to authorize the court to order an interpleader,, under § 122 of the Code. The order of Mr. Justice Gross, which is annexed to the affidavit, shows the good faith of the application, but its validity could not be determined upon the motion. That question is to be determined on the trial of the action against the party claiming under it. Nor did the opposing affidavit of the plaintiff show any grounds for refusing the order. Collusion between the party to whose rights plaintiff succeeded and the party claiming the fund from the bank under the order of Mr Justice Gross, is not enough, as long as the bank is free from it.

The order should be affirmed, with costs.

Speir, J., concurred.