Buffalo Lubricating Oil Company agt. Everest.

lieve, in my examination, read every leading case decided in England or in this country, and I find none which can be cited as a precedent for denying the defendant's motion, and allowing this verdict to stand. Granting new trials on the ground that the damages are excessive-in cases where the jury are allowed to award smart money—is, comparatively, a modern practice, and had its origin in the English courts. In cases where the courts can see, without mistake, the amount mentioned in the verdict as punative damages, it is now the universal practice to examine the whole case with care, and determine whether the sum so included is so large as to shock the judgment of most intelligent and dispassionate man.

This case is to be distinguished from a class of cases like libel and slander, assault and battery, seduction and crim. con., where sentiment and feeling are largely involved, and it is, therefore, quite impossible for the court to separate the sum of actual damages from the verdict, and thus discover the real sum awarded as a punishment to the defendant.

In this case there is no chance for mistake. The jury did allow $16,000 as smart money as a punishment to the defendants for enticing away a servant from the plaintiff, who, at the time he left its employ, was one of its stockholders and chiefexecutive officers. Miller, himself, was one of the board of trustees, who had a right to decide whether a servant in the employ of the company should remain or be discharged.

I do not consider the exceptions taken by the defendants, but grant the order for a new trial on the ground that the damages are excessive.

New trial granted on the defendants paying the taxable costs of this action, after notice of trial, including the costs of this motion, together with disbursements, to be paid within twenty days after taxation and notice, and, if not paid, motion denied with costs.

Cronin agt. Cronin.

CITY COURT OF NEW YORK.

MARY CRONIN agt. JOSEPH CRONIN.

Costs-In interpleader actions-Code of Civil Procedure, sections 3228, 3229, 3230.

Where upon the trial of an action in which interpleader was allowed under the Code, the plaintiff established title to part of the fund in court and the defendant to the balance, and on the pleadings each party denied all; Held, that neither was entitled to costs "as of course," but that the award of costs in such cases rested in the discretion of the court.

Special Term, February, 1886.

THE bank for savings had on deposit to the credit of "Mary Cronin and husband, Joseph, or either," the sum of $747.98. The plaintiff brought an action against the bank, claiming the entire deposit, and the bank moved for and obtained an order interpleading in its place the present defendant, on the ground that he also made claim to the same fund (Mulcahy agt. Emigrant Industrial Savings Bank, 89 N. Y., 435). The bank, under this order, was allowed to retain the fund at interest, subject to the further order of the court, leaving the rival claimants to establish their title to it. The defendant in his answer admitted the plaintiff's title to $125 of the sum on deposit and claimed the balance as his own. The plaintiff served a reply to the answer, in which she reiterated her claim to the entire fund. The issue was tried and the jury found that $425 of the fund belonged to the plaintiff and the balance, $322.98, belonged to the defendant. Neither can properly be called the "prevailing party," because each was to an extent unsuccessful. Each party denics the right of the other to costs, and the court is called upon to determine whether either, and which, of the parties is entitled to costs under the peculiar circumstances stated.

Cronin agt. Cronin.

Howe & Hummell, for plaintiff.

John A. Mott, for defendant.

MCADAM, C. J.-The action of interpleader is of equitable origin, and the remedy provided by the Code is merely concurrent (9 How. Pr., 193; 1 E. D. Smith, 665; S. C., 8 How. Pr., 45; 14 id., 505). The principles which govern the remedy, either in equity or under the Code, are alike, and the rule formerly prevailing as to costs should, as far as practicable, be applied to the present practice. It is evident that the general provisions of sections 3228 and 3229 of the Code as to costs, were not intended to include interpleader actions, where (as here) each party prevails in establishing title to a substantial part of the fund in dispute. The case, in consequence, falls within section 3230, which leaves the award of costs discretionary with the court. This construction agrees with that approved by Willard in his work on Equity Jurisprudence (Potter's ed.), 321, where he says, that the Code (sec. 306 of old, and sec. 3230 of new) "vests the court with the same discretion in such actions as existed before," and under the former practice costs were not matter of right in interpleader cases. They rested in the discretion of the court (Bedell agt. Hoffman, 2 Paige, 199). This also accords with the present general legislative intent (2 R. S., 617, § 20; 3 Wait's Pr., 468, 469; Code, § 3234). The legislature certainly did not intend, even under the interpleader allowed by the Code, that a defendant whose defense was meritorious, and who succeeded in it to the extent of prevailing in the action equally with the plaintiff, should be arbitrarily mulcted with costs, "as of course," for presenting a claim fully as just as that made by his adversary. Such an interpretation would be harsh and oppressive, and tend to establish an immutable rule which might, in some cases, work great injustice. The intention was to avoid this possible result by leaving the question of costs in such actions to the discretion of the court, VOL. III. 24

Cronin agt. Cronin.

that they might be allowed or withheld according to equitable principles and in furtherance of justice. This intent (if it required further evidence to make it manifest) will be found in the statute (3 R. S., 6th ed., 378, § 392), which provides that where the title to a fund on deposit with a savings bank is disputed, an interpleader may be allowed, to the end that the rival claimants interested in the dispute may be brought into the litigation and the bank allowed to drop out, and which further provides that "the question of costs in the actions referred to shall, in all cases, be in the discretion of the court, and may be charged upon the fund affected by such action." It is clear, therefore, that the award of costs rests entirely in the discretion of the court, and the only question left is to exercise the discretion for the best interests of all concerned, keeping in mind the smallness of the fund. The plaintiff and defendant are husband and wife; they disagreed, and, in consequence, separated. Law suits followed, and this is one of them.

As usual, in such intestine quarrels, each of the parties is right to an extent, and beyond that wrong. The interests of all will be best subserved by holding that each of the litigants have the portion of the fund to which they are respectively entitled; that neither have costs against the other; that the costs of the respective attorneys be not charged on the fund; and that the attorneys on each side be left to regulate his fee with his client when the fund is paid over.

The disbursements incurred by each of the litigants in determining the title to the fund, should, as a necessary incident, be taxed and charged upon the fund, but the application for further costs or allowance will be denied. A decree in accordance

herewith may be submitted.

Rothnell agt. Paine et al.

CITY COURT OF NEW YORK.

RICHARD P. ROTHNELL agt. AUGUSTUS G. PAINE et al.

Order of arrest-Undertaking on- - When sureties liable- Code of Civil Procedure, sections 549-559.

Where an order of arrest is obtained in an action where the cause of action and cause of arrest are identical, and the order of arrest is vacated on motion, and the plaintiff on the trial withdraws by stipulation the allegations of fraud from the complaint.

Held, that the order vacating the order of arrest became the final decision that the plaintiff in said action was not entitled to the order of arrest, and an action was maintainable upon the undertaking for damages sustained by reason of the arrest.

Edward M. Sheppard and James H. Fay, for appellants.

HALL, J.-This is an appeal from a judgment in favor of plaintiff entered upon the verdict of a jury at trial term and from an order denying defendants' motion for a new trial upon the minutes and exceptions.

The action is brought upon an undertaking executed by defendants as sureties in an action in the superior court of the city of New York, wherein James P. Tuttle was plaintiff and the plaintiff herein was defendant, and was given in pursuance of the requirements of the Code of Civil Procedure to procure -an order of arrest against the plaintiff herein.

The condition of the undertaking is that "if the defendant in the said action do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff will pay," &c.