
    McHugh v. Astrophe.
    
      City Court of New York—General Term,
    November, 1892.)
    A third party who is brought into a litigation as defendant by order of interpleader cannot he required to furnish security for costs, even though he he a nonresident and irresponsible.
    Appeal from order made by Judge Fitzsimons.
    
      F. B. Morel, for plaintiff (respondent).
    
      Booraem, Hamilton & Beckett, for defendant (appellant).
   Ehrlich, Ch. J.

The question involved is whether a third person substituted as defendant by order of interpleader can be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.

Interpleader is an equitable proceeding, governed by equitable principles.

The legal title to the fund is in the plaintiff, and presumptively, she is entitled to it. The substituted defendant comes in as a claimant, and in respect to such claim is nominally, though not technically, a plaintiff. He is a nonresident and irresponsible.

Under such circumstances, the imposition of the condition might be deemed a valid exercise of power. But the difficulty is that there is no statute requiring such substituted defendant to give security for costs. See Republic v. Soto, 112 N. Y. 313; 16 Civ. Pro. Rep. 270; 20 N. Y. St. Repr. 749; Coates v. Morris, 1 Law Bul. 29.

If the third party had applied for leave to come in, security might have been required as a condition, but that is not in this case. He is brought into the litigation in invitum, and cannot be hampered by conditions. Besides being an executor, he could not be said to be unreasonably defending a litigation to which his presence has become necessary to a complete determination of the controversy.

The order appealed from must, therefore, be reversed, with costs.

Newburger, J., concurs.

Order reversed.

Appeal from order made by Judge McGown.

Ehrlich, Ch. J.

On the opinion filed this day upon deciding the appeal from the order of Judge Fitzsimons, the order appealed from will be reversed, without costs.  