make the application for substitution whether they do so apply, or not; and if they do not apply, the case may continue to be prosecuted by or against the original parties. Manchester v. Herrington, 10 N. Y. (6 Seld.), 164; approving Colegrove v. Breed, 2 Denio, 125. În Overseers of Poor of Clayton v. Beedle, 1 Barb. 11, it was held that this statute did not apply in the case of a writ of error. e. Abatement in actions by corporations.-The statute to prevent the abatement of suits by or against corporations. Laws 1832, ch. 295, expressly provides that | the dissolution of a corporation shall not abate any suit, but that the same may be continued in the name of the corporation, or of its trustees. New York Marbled Iron Works v. Smith, 4 Duer, 362. See 3 Bosw. 310-312; 8 id. 512. f. Cross-bill. The provisions of the Code allowing a suit to be revived against the representatives of a decedent party, applies to the defendant in a cross-bill as well as to the original suit. Hatfield v. Bloodgood, 1 Code R. N. S. 212. § 122. [102.] (Am'd 1849, 1851.) Court when to decide controversy, or to order other parties to be brought in. The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights, but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant, against whom an action is pending upon a contract, or for specific, real or personal property, may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order.. I. GENERAL NOTES. a. Deciding controversy.-The court may determine any controversy between the parties before it; but where each of the defendants merely asks to have the complaint dismissed, no other relief can be granted, on appeal. Garvey v. Jarvis, 54 Barb. 179. "When a complete determination of the controversy cannot be had, without the presence of other parties," is, where there are persons, not parties, whose rights must be ascertained and settled, before the rights of the parties to the suit can be determined. McMahon v. Allen, 12 How. 39; S. C. Aff'd, 3 Abb. 89; 1 Hilt. 103. Frequently, those who are named as parties, must be made parties by service of process, in order properly to determine the controversy. Powell v. Finch, 5 Duer, 666. b. Bringing in parties.-This section renders it the imperative duty of the court to bring in additional parties, where a complete determination of the controversy cannot other wise be had. Shaver v. Brainard, 29 Barb. 25; Davis v. The Mayor etc. of New York, 2 Duer, 663; S. C. on the merits, 12 N. Y. Leg. Obs. 17, sub nom. Attorney-General v. Mayor, etc., of New York. The court will not allow the plaintiff to bring in a new party defendant, when the presence of such party is the condition of his recovery. Such a proceeding would be equivalent to the commencement of a new action. In such a case, the defendant would have the right to ask that other parties be brought in for his protection, but he may waive the right. McMahon v. Allen, 12 How. 39. In some cases it will be the duty of the court to refuse to proceed until other parties are brought in by the service of process. As, where an action was brought against several, for the specific performance of a contract, and it appeared that only one defendant had been served, the court refused to render judgment until all had been summoned. Powell v. Finch, 5 Duer, 666. See Monroe v. Galveston, etc., R. R. Co. 19 Abb. 90. In an action against the indorsers of a promissory note the court cannot make an order compelling the plaintiff to bring in other parties to the note. Sawyer v. Chambers, 11 Abb. 110. The court may order non-residents to be made parties. Sturtevant v. Brewer, 17 How. 571; S. C. 9 Abb. 414; S. C. Aff'd, 4 Bosw. 628. It is immaterial at what stage of the proceeding a new party is brought in, if the merits of the controversy are not affected. Attorney-General v. The Mayor, etc., of New York, 3 Duer, 119, (155); Overruled 14 N. Y. (4 Kern.), 506, sub nom. Davis v. Mayor, etc., of New York. Where the cause stands over to allow other parties to be brought in, the defendant should not be allowed costs unless he has pleaded the objection. Mitchell v. Bailey, 3 Maddock's R. 61. c. Parties asking leave to come in. Where a person applies for leave to come in and defend, the court will not grant the application unless it is made before judgment. Carswell v. Neville, 12 How. 445. Where a party, foreign to the suit, asks for leave to come in and litigate the plaintiff's claim, his admission rests in the discretion of the court. Scheidt v. Sturgis, 10 Bosw. 606. The application should be denied where the party applying is plaintiff in another suit, wherein he may obtain all the relief he claims. Id. d. In what cases party may come in.-This provision, which allows party mak II. ACTION OF a. Nature of the remedy.-A bill of interpleader, strictly so called, is, where the complainant claims no relief against either of the defendants, but only asks that he may be at liberty to pay the money or deliver the property to the one to whom it of right belongs, and be thereafter protected from the claims of both. Bedell v. Hoffman, 2 Paige 199. b. When the action will lie.-The action of interpleader will lie to protect a person from whom several claim, either legally or equitably, the same thing, but who has incurred no distinct liability to either. And if the property in dispute is definite and certain, that is enough without showing its exact value. Cady v. Potter, 55 Barb. 463. It cannot be maintained by parties who claim a portion of the fund in question. ib. Wakeman v. Dickey, 19 Abb. 24; Atkinson v. Manks, 1 Cow. 691, (703); Oppenheim v. v. Wolf, 3 Sand. Ch. 571; S. C. 4 N. Y. Leg. Obs. 259. Nor can it be maintained by parties who have any interest adverse to the parties defendant, for if there is relief demanded further than to require the defendants to interplead, it is not in the nature of a bill of interpleader. New York & New Haven R. R. Co. v. Schuyler, | | ing application to the court, to be made a party in some cases, is confined, in its application, to those cases where formerly a bill of interpleader would have accomplished the same purpose. Hornby v. Gordon, 9 Bosw. 656. It applies only to actions for the recovery of real and personal property. Kelsey v. Murray, 28 How. 243; S. C. 18 Abb. 294; Tallman v. Hollister, 9 How. 508; Judd v. Young, 7 How. 79. It does not apply to an action on a mere money demand. Kelsey v. Murray, 18 Abb. 294; S. C. 28 How. 243; Judd v. Young, 7 How. 79. In an action to recover the possession of goods, on the ground of fraud on the part of the vendee, third persons, claiming the goods, by virtue of purchase from such vendee, should not be allowed to come in. Hornby v. Gordon, 9 Bosw. 656. It does not apply to an action for the dissolution of a partnership. Dayton v. Wilkes, 5 Bosw. 655. Nor to an action in the nature of a creditor's bill, to reach a surplus in the hands of the surrogate. Tallman v. Hollister, 9 How. 508. But in a partition suit, a person having an interest in the subject may be made a party on application. Waring v. Waring, 3 Abb. 246. In an action to recover property seized on execution, the plaintiff in the execution may be made a party on his application. Conklin v. Bishop, 3 Duer. 646. Before the Code, the courts could not, in an action at law, bring in other parties, except in an action of ejectment. Hornby v. Gordon, 9 Bosw. 656; and see Godfrey v. Townsend, 8 How. 398. INTERPLEADER. 1 Abb. 417, (424); S. C. Rev'd on other grounds, 17 N. Y. (3 Smith), 592; 7 Abb. 41. The plaintiff must not have lent himself to the assistance of either of the defendants. Marvin v. Ellwood, 11 Paige, 365. The allegations in every bill of interpleader should be: 1, That two or more persons have preferred a claim against the plaintiff; 2. That they claim the same thing; 3. That the complainant has no beneficial interest in the thing claimed, and 4. That he cannot determine without hazard to himself, to which of the two defendants the thing of right belongs. Atkinson v. Manks, 1 Cow. 691, (703.) And see New York and New Haven R. R. Co. 1 Abb. 417; S C. Rev'd on other grounds, 17 N. Y. (3 Smith), 592; 7 Abb. 41. In an action of interpleader under the Code, the relief will not be granted until all the defendants have failed either to demur or answer. If they demur or answer, the issues will be tried as in other actions. Washington Life Ins. Co. v. Lawrence, 28 How. 435. The party bringing the action must be ignorant of the rights of the respective parties. Wilson v. Duncan, 11 Abb. 3; Bell v. Hunt, 3 Barb. Ch. 391; Shaw v. Coster, 8 Paige, 339. § 122.] INTERPLEADER. It will not lie, where it appears that the plaintiff is fully advised of the grounds of the various claims. Morgan v. Fillmore, 18 Abb. 217; Trigg v. Hitz, 17 id. 436. The action cannot be maintained where the plaintiff denies liability to either of the defendants. McHenry v. Hazard, 45 Barb. 657. Nor where he has rendered himself liable to Or even where he has incurred a personal Where an attorney claimed his costs out of And so, where there was a question as to the amount of the fund. Diplock v. Hammond, 27 Eng. Law & Eq. R. 202. The action will not lie by a vendee of goods against his vendor and a stranger who claims the purchase money on the ground that the vendor obtained such goods of him by fraud. Trigg v. Hitz, 17 Abb. 436. Nor by a common carrier against the consignor of goods in his possession, and a third party who claims such goods. McGaw v. Adams, 14 How. 461. The action may be maintained by a party who is taxed in two different towns for the same property, and where it is doubtful which of the two is entitled to the tax. Mohawk and Hudson River Railroad Co. v. Clute, 4 Paige, 384; Thomson v. Ebbets, 1 Hopk. Ch. R. 272. So, where the title to property is in dispute and the plaintiff is entitled to relief against III. INTERPLEADER a. Concurrent remedy.-This is a concurrent remedy with the action of interpleader, but can only be taken advantage of after an action has been commenced. McKay v. Draper, 27 N. Y. (13 Smith), 256, (260); Patterson v. Perry, 14 How. 505; S. C. 6 Duer, 686; Beck v. Stephani, 9 How. 193. It provides a summary mode of relief, but introduces no new cause of interpleader. id.; Vosburgh v. Huntington, 15 Abb. 254. The provision of this section for the substitution of parties is founded on the English statute, and the decisions under that seem to have settled the rule, that it is only when no other question than the right of property is to be litigated, that an interpleader can be allowed. Sherman v. Partridge, 1 Abb. 256; S. C. 11 How. 154; 4 Duer, 646. In an action to recover specific personal property, it is a sufficient objection to an application for substitution, that the property in the real owner, he may maintain the action Or where several claim the purchase money When the claims of the different parties are It will lie by a stakeholder against different Where a party has accepted an indemnity A party having a legal interest in the fund, as a lien for wharfage, cannot maintain the 2 Mo. & S. 131; Mitchell v. Hayne, 2 Sim. & action. Braddick v. Smith, 9 Bing. 84; S. C. Stu, 63. An auctioneer may maintain the action against an owner whose goods he has sold, though he insists on the retention of the deon its return. Bleeker v. Graham, 2 Edw. Ch. posit money, and the purchaser, who insists So of a receiver, who has a fund in his 647; Mitchell v. Hayne, 2 Sim. & Stu. 63. hands, to which there are different claimants. Winfield v. Bacon, 24 Barb. 154. Where a party is in danger of being vexed by several adverse claimants, whether by suit may have relief by interpleader. Yates v. Tinsalready commenced, or only threatened, he dale, 3 Edw. Ch. 71, 74. A debtor, merely served with a notice that an attachment has been issued against the action to interplead his creditor and the attachproperty of his creditor, cannot maintain an ing plaintiff. United States Trust Co. v. Wiley, 41 Barb. 477. UNDER THE CODE. question cannot be brought into court. Vosburgh v. Huntington, 15 Abb. 254. b. Bailee of money.-Where money was deposited with a party to be paid on certain conditions, and an action was brought said that the proper way for the bailee to proagainst such bailee by a third party, the court tect himself, and the one who was entitled to stitution, under § 122 of the Code. McKay v. the money, was by obtaining an order of subDraper, 27 N. Y. (13 Smith), 256. A party deposited money in a bank, and soon after transferred his interest to another; a receiver of the property of the depositor had been transferred, brought an action against claimed the deposit, and the one to whom it the money into court, the receiver should be the bank therefor. Held, that on payment of Fletcher v. Troy Savings' Bank, 14 How. 383. substituted as defendant in place of the bank. An action was brought by the assignees of a deposit, to recover the same, and those who held the deposit were served with an attachment in another action commenced by parties who claimed the fund. Held, a proper case for substitution. Wilson v. Duncan, 8 Abb. 354; S. C. Rev'd, 11 Abb. 3. See also 41 N. Y. (2 Hand), 214. Where a third party not in privity with the depositor, claims money which has been deposited in a savings' bank, such bank will not be allowed to implead the adverse claimants. Lund v. The Seamans' Bank for Savings, 20 How. 461; S. C. on demurrer, 23 id. 258; quoting Fletcher v. Troy Savings' Bank, 14 How. 383; Shaw v. Coster, 8 Paige, 339, 343; Marvin v. Ellwood, 11 id. 365. c. Claims for price of goods sold.— Where an action was brought on a note, it appeared that the defendant gave the note for a purchase of goods made of one G., who had also commenced an action for the amount of the note. The plaintiff in the first mentioned action averred that G. acted as his (plaintiff's) agent in negotiating the sale; held,that G. should be substituted as defendant on payment of the money into court. Johnston v. Lewis, 4 Abb. N. S. 150. See Trigg v. Hitz, 17 Abb. 436. In an action against the consignee of goods, who sold the same and held a balance of the fund in his hands, a claim for interest was made which was contested; held, that an order of substitution could not be granted, as a conlition of the granting of such an order is, that the applicant has no interest in the subject of controversy. Patterson v. Perry, 14 How. 505; S. C. 16 Duer, 686. See the same principle in Wakeman v. Dickey, 19 Abb. 24; Moore v. Usher, 7 Sim. 384; Braddick v. Smith, 9 Bing. 84; S. C. 2 Mo. & S. 131; Mitchell v. Hayne, 2 Sim. & Stu. 63. d. Common carrier.-Where a common carrier had goods placed in his charge, to be conveyed to a distant port, and before the sailing of the vessel several parties claimed the goods; one action was commenced and others threatened; held, to be a proper case for an order of substitution. Schuyler v. Hargous, 3 Rob. 673; S. C. 28 How. 245. In such a case the bailee or agent cannot dispute the title of the one from whom he has received the property. Hence, such bailee is not entitled to an interpleader to settle the claims of the bailor and one who claims by a distinct title. Vosburgh v. Huntington, 15 Abb. Huntington, 15 Abb. 254. e. Guardian, administrator, etc.— Where R., the defendant, gave his note to J., as guardian, etc., J. died, and S. was appointed guardian. The administrator of J. brought the action for the payment of the note; held, that S. should be substituted. Van Buskirk v. Roy, 8 How. 425. The order in that case provided that if S. did not appear in the action within twenty days after service of the order and complaint, that the money deposited in court should be paid to the plaintiff. Ib. f. Mechanic's lien.-In an action to foreclose a mechanic's lien, where several had been filed, the defendant alleged that he was indebted to the contractor in a sum less than the plaintiff's claim against the contractor, had paid all the residue of the moneys belonging to the contractor, and asked to be allowed to pay the balance into court and have the various claimants substituted as defendants. The application was denied. Chamberlain v. O'Connor, 8 How. 45; S. C. 1 E. D. Smith, 665. The owner of a building cannot interplead the contractor and a creditor of the contractor, when he has ample protection at law. Dry Dock Methodist Episcopal Mission Church v. Carr, 2 Barb. 60. g. Landlord and tenant.-A tenant cannot deny the title of his landlord, nor can he interplead him with a stranger. Seaman v. Wright, 12 Abb. 304. But where the lessor died and two parties claimed the rent, a bill of interpleader was sustained. Badeau v. Tylee, 1 Sandf. Ch. 270. h. Appeal. An order of substitution is appealable. Wilson v. Duncan, 11 Abb. 3; Rev'g S. C. 8 Abb. 354. So of an order disposing of a fund in court. Kirby v. Fitzpatrick, 18 N. Y. (4 Smith), 484. i. Costs.-The unsuccessful applicant is responsible for costs in all cases, except where special circumstances have induced the court to exercise its discretion in his favor. Thus, an order was made that the party who failed to obtain a substitution, should pay the costs recovered by the plaintiff and those of his codefendant, both on the bill and in an action at law commenced by him in relation to the same matter. Miller v. De Peyster, 1 Abb. 234; S. C. 4 Duer, 203. The successful applicant is entitled to his costs out of the fund in question. Van Buskirk v. Roy, 8 How. 425, and cases cited, supra, and in note II. SECTION 123. 124. 125. 126. TITLE IV. Of the place of trial of civil actions. Certain actions to be tried where the subject, or some part thereof, is situated. Other actions, where the cause or some part thereof arose. Other actions, according to the residence of the parties. Action may be tried in any county, unless defendant demand trial in proper county. § 123. [103.] (Am'd 1849.) Certain actions to be tried where the subject, or some part thereof, is situated. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute: 1. For the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property; 2. For the partition of real property; 3. For the foreclosure of a mortgage of real property; 4. For the recovery of personal property distrained for any cause. a. Foreclosure.-In an action for the foreclosure of a mortgage, the " proper county" for the place of trial, is where the mortgaged premises are situated, although the money may be loaned and the mortgage executed and delivered to the mortgagee in another county. Miller v. Hull, 3 How. 325; S. C. 1 Code R. 113; Vallejo v. Randall, 5 Cal. Rep. 461. It is, however, no objection to the regularity of the proceedings in a foreclosure suit, that the place of trial was in a county other than that in which the mortgaged premises are situated, where there has been no motion or demand made to change the place first selected. Marsh v. Lowry, 26 Barb. 197; S. C. 16 How. 41, sub nom. March v. Lowry. b. Priority of right.-Where the complatt, among other things, prayed that the right of the defendants to the land in question, might be adjudged to be subordinate to the right of the plaintiff, and that the defendants might be ordered to give up possession of the land: Held, that it was a case within the provisions of the latter clause of section 123, subd. 1 of the Code. Mairs v. Remsen, 3 Code R. 138. c. Setting aside conveyance.-An action brought to obtain the judgment of the court, that a conveyance of real estate by the defendant is fraudulent, seeking by this means to appropriate such property to the payment of the plaintiff's judgment, is an action brought for the determination of interests in real prop erty, and must be tried in the county in which it is situated. Wood v. Hollister, 3 Abb. 14; contra, Rawls v. Carr, 17 Abb. 96. The latter authority was substantially overruled by the court of appeals in Leland v. Hathorn; see subd. f, post. In an action affecting the title to lands the court may change the place of trial as a matter of right. Starks v. Bates, 12 How. 465. d. Lands out of the State.-This provision has no application to cases where the subject of the action does not lie within this State. Newton v. Bronson, 13 N. Y. (3 Kern.), 587; Mussina v. Belden, 6 Abb. 166; Bennett v. Erving, 32 How. 384; S. C. 4 Rob. 671. e. Statutory foreclosure.-An action to set aside a statutory foreclosure of a mortgage of real property, and to redeem the land from the mortgage, is not local, and not necessarily to be tried within the county where the land is situated. Hubbell v. Sibley, 4 Abb. N. S. 403. For construction of the first clause of section 122, see same case. f. Local action respecting real property. Where an action was brought to restrain the defendant from building a bridge across a public street, which structure, it was claimed, would injure the property of the plaintiff, the court of appeals held that it was a local action, and must be tried where the property was situated. Leland v. Hathorn, 9 Abb. N. S. 97; S. C. 2 Alb. Law Jour. 79; S. C. 3 IIand, 549. See subd. c, supra. |