
    (89 Hun, 382.)
    DU BOIS v. UNION DIME SAV. INST.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    Interpleader—When Libs—Claimants of Same Fund.
    A depositor of money in a savings bank took the pass book in hi'S own name, as trustee for his sister. Afterwards he married, and opened a new account as trustee for his wife, and transferred the deposit to the new account. He then drew out part of the deposit. After his death both his wife and sister sued the bank; the sister claiming the full amount of the first account, as it stood in trust for her, and the wife claiming only the balance of the second account remaining after deducting the portion drawn out. Held, that the wife and sister did not seek to recover “the same fund” (Code Civ. Proc. § 820), so as to entitle the bank to an interpleader against them.
    Appeal from special term, New York, county.
    Action by Lavinia A. Du Bois against the Union Dime Savings Institution to recover certain moneys on deposit with defendant. From an order denying a motion to substitute Ellenora H. Decker in place of defendant savings institution, said institution appeals. Affirmed.
    Prior to July 31. 1886, William F. Du Bois deposited with the defendant, to the credit of “William F. Du Bois, in trust for Louisa Du Bois,” various sums, amounting, with the accumulation of interest, on said date to $4,086.50. This account, and the corresponding pass book, were numbered 138,463. Louisa Du Bois was the wife of William F. Du Bois, and, she having died, he, on the 31st of July, 1886, surrendered pass book No. 138,463, and had the fund, $4,086.50, credited on defendant’s books to “William F. Du Bois, in trust for Ellenora H. Decker,” which account, and the corresponding pass book then delivered to him, bore the number 180,769. Ellenora H. Decker and William F. Du Bois were brother and sister. There was credited to this account, for interest, January 1, 1887, $66.29, and July 1, 1887, $67.28, so that, August 1, 1887, there was standing to the credit of said account No. 180,769, $4,218.07. Before August 1, 1887, William F. Du Bois married Lavinia A., his second wife, and on that date he opened a new account witii defendant, in the name of “William F. Du Bois, in trust for Lavinia A. Du Bois,” which, and the accompanying pass book, were numbered 186,416, and transferred to it $1,000 from account No. 180,769. July 30, 1890, William F. Du Bois opened another account, which, and its accompanying pass book, bore the number 226,331, with defendant, in the name of “William F. Du Bois, in trust for Lavinia A. Du Bois,” and transferred to it, from account No. 180,769, $3,552.07, which sum, with the previous $1,000, represented account No. 180,769 and all accumulations of interest thereon. Account No. 180,769 was then closed, and the pass book surrendered by William F. Du Bois to the bank. Afterwards (the dates not appearing) William F. Du Bois drew $25 from account No. 186,416 and $890.46 from account No. 226,331. June 12, 1894, William F. Du Bois died, and on the same day Ellenora H. Decker began an action in the superior court of this city against the defendant to recover $4,086.50, with the accumulations of interest thereon since July 31, 1886, not crediting the two payments of $25 and $890.46, amounting to $915.46. In that action the defendant answered, setting up substantially the foregoing facts. December 3, 1894, this action was begun to recover §4,308.10, the amount standing to the credit of accounts Nos. 186,416 and 226,331, with the accumulations of interest thereon, crediting the defendant with §915.46, the amount of the two payments before mentioned. The defendant has not answered in this action, but admits it is owing to one or the other of the rival claimants the amount sought to be recovered in this action, and moved at special term for an order substituting Ellenora H. Decker as a defendant in its stead in this action, offering to pay into court the amount claimed herein, which is §915.46 less than the amount claimed by Ellenora H. Decker in her action.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    O. N. Bovee, Jr., for appellant.
    G. W. H. Zeglio, for respondent Ellenora' H. Decker.
    Peter S. Carter, for respondent Lavinia A. Du Bois.
   FOLLETT, J.

This is not an action brought by the bank against the two rival claimants of the sum on deposit to compel them to inter-plead, but it is a motion made, pursuant to section 820 of the Code of Civil Procedure, by the bank, the defendant in two actions brought by the claimants, to substitute Ellenora H. Decker, the plaintiff in the first action, now pending in the superior court, as a defendant in the place of the bank in the second action brought by Lavinia A. Du Bois against it. Lavinia A. Du Bois consents that Ellenora H. Decker be substituted as defendant in the place of the bank in this action. The defendant offers to pay into court, pursuant to section 820, Code Civ. Proc., or to hold, pursuant to section 115 of chapter 689 of the Laws of 1892, the sum claimed by Lavinia A. Du Bois, but it does not offer to pay into court, or to hold, subject to the final determination of the controversy, the sum which Ellenora H. Decker seeks to recover, which is $915.46, besides interest, more than the bank admits to be due from it. Section 820 of the Code of Civil Procedure is not a substitute for the action of interpleader, but is an additional and summary remedy afforded to defendants to compel rival claimants to be brought into the action. Beck v. Ryback, 9 How. Prac. 193; Cronin v. Cronin, 9 Civ. Proc. R. 137, 3 How. Prac. (N. S.) 184. The right of a defendant to compel rival claimants to be brought into an action by motion depends upon the same principles as the right to maintain an action of interpleader to compel rival claimants to litigate as between themselves.

Though the relation between a savings bank and the owner of the credit be that of debtor and creditor, rival claimants “for the same fund,” or credit, may be interpleaded and compelled to determine, as between themselves, their respective rights to the fund. Laws 1892, c. 689, § 115 (the banking law). But the difficulty with granting the defendant the relief sought, under section 820 of the Code of Civil Procedure, is that these rival claimants do not seek to recover “the same fund,” credit, or sum. The amount which Ellenora H. Decker seeks to recover in her action being greater than the amount which the defendant admits to be due, it is not entitled to have her substituted in this action, brought by Lavinia A. Du Bois to recover a less sum, which the defendant admits to be due from it. Railroad Co. v. Arthur, 90 N. Y. 234; Insurance Co. v. Odell, 50 Hun, 279, 2 N. Y. Supp. 873; Van Zandt v. Van Zandt (Sup.) 7 N. Y. Supp. 706; Sibley v. Society (Super. N. Y.) 3 N. Y. Supp. 8; Dodge v. Lawson (Super. N. Y.) 19 N. Y. Supp. 904; Bender v. Sherwood, 15 How. Prac. 258; Supervisors v. Seaburg, 11 Abb. N. C. 461; Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991; Id., 2 Silv. Ct. App. Cas. 341, 358, note; Chamberlain v. O’Connor, 1 E. D. Smith, 665; Patterson v. Perry, 14 How. Prac. 505; Moore v. Usher, 7 Sim. 383; Glyn v. Duesbury, 11 Sim. 139; Diplock v. Hammond, 23 Law J. Ch. 550, 27 Eng. Law & Eq. 202; Bridesburg Manuf’g Co.’s Appeal, 106 Pa. St. 275; Glasner v. Weisberg, 43 Mo. App. 214; Story, Eq. Pl. (10th Ed.) § 291; 2 Story, Eq. Jur. (13th Ed.) § 821 et seq.; 3 Pom. Eq. Jur. § 1323.

Had the bank admitted that there was due from it a sum equal to that claimed by Ellenora H. Decker,—the largest sum,—then the rival claimants might have been compelled to litigate their claims as against each other. Koenig v. Insurance Co., 14 N. Y. St. Rep. 250, 14 Civ. Proc. R. 269; Progressive Handlanger Union No. 1 v. German Sav. Bank (Super. N. Y.) 7 N. Y. Supp. 3, 8 N. Y. Supp. 545; Yates v. Tisdale, 3 Edw. Ch. 71; Fargo v. Arthur, 43 How. Prac. 193.

But we know of no authority authorizing an interpleader, by action or motion, when the stakeholder denies that the full amount demanded by one of the rival claimants is due. The rule deducible from the authorities is: In case A. is threatened with suit, or is sued, by. B. for $1,000, and by C. for $500 of the same fund, and A. admits that he holds $1,000, B. and C. may be compelled to interplead, but in case A. denies that he holds $1,000 and admits that he holds $500, he cannot compel B. and C. to interplead. The bank was not entitled to an order substituting Ellenora H. Decker as a defendant in its stead, under section 820 of the Code.

The learned counsel for the bank now insists that the motion should have been granted under section 452 of the Code of Civil Procedure, which provides:

“Sec. 452. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. * * *”

The difficulty with this contention is that the motion was not made under the section last quoted. It appears, by the notice of motion, that relief was sought under section 820, and not under section 452, of the Code, and it does not appear that it was suggested at special term that Ellenora H. Decker might be brought in as a defendant under section 452, and it is too late to claim for the first time on appeal that relief should have been granted at special term under the latter section.

The order must be affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., and O’BRIEN, J., concur in result.  