Wehle v. Bowery Savings Bank

8 Jones & S. 97

• Court: The Superior Court of New York City
• Decided: December 6, 1875
• Status: Published

Opinion

By the Court.—Freedman, J.

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.