
    Lelia Reed Mason, Appellant, v. Joseph F. Rice, Respondent.
    
      Interpleader—action to recovera bond and mortgage and assignment thereof—a delivery of the assignment into court where the defendant has delivered the bond and mortgage to another claimant does not entitle him to interplead such claimant— such claimant should be made .a party defendant.
    
    In an action brought to compel the defendant to deliver to the plaintiff a bond and mortgage and an assignment thereof, it was alleged that the instruments were delivered to the defendant, as agent and trustee of the plaintiff, by the mortgagee, who was the plaintiff’s father, with instructions to deliver them to the plaintiff, to whom the assignment ran, upon the mortgagee’s death.
    The complaint further alleged the death of the plaintiff’s father and the wrongful refusal of the defendant to deliver to the plaintiff the bond, mortgage and assignment, and asked that the plaintiff be permitted to recover the value thereof if the defendant was unable to deliver the same.
    The defendant submitted an affidavit claiming that he had delivered the bond and mortgage to another daughter of the mortgagee at the latter’s request and under circumstances which, if true, indicated a delivery-to him. The affidavit further averred that the executor of the mortgagee was in possession of the bond and mortgage and claimed that they constituted part of the mortgagee’s estate.
    The court thereupon ordered that the executor of the mortgagee be substituted in the place of the defendant and that the latter be discharged from all liability upon delivering to the county treasurer the assignment of the mortgage.
    
      Held, that the order should be reversed;
    That, under the allegations of the complaint, the plaintiff had a right to challenge the validity of the return of the bond and mortgage to the mortgagee;
    
      That the order was not justified by section 820 of the Code of Civil Procedure,, as the defendant was not directed by such order to deliver to the county treasurer all the property which the plaintiff sought to recover, but only the assignment;
    That the order of interpleader was also improper, for the reason that the defendant did not admit liability to any one for the bond and mortgage;
    . That the mortgagee’s executor should, however, be made a party defendant;
    Appeal by the plaintiff, Lelia Reed Mason, from, an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on the 23d day of September, 1902, substituting Mortimer W.. Potter, as executor of John C. Reed, deceased, as defendant in place of the present defendant.
    
      Frederick A. Bobbins and A. L. Elliott, for the appellant.
    
      Norton & Wct/rd, for the respondent.
   Spuing, J.:

■ The action is commenced to compel the defendant to deliver to the plaintiff the bond, mortgage and assignment described in the complaint. It is alleged that these instruments were delivered to the defendant, as agent and trustee of the plaintiff, by one Reed, the mortgagee named in the said mortgage, to be delivered to the plaintiff, to whom the assignment ran, upon the death of the mortgagee,/who was her father. The complaint further alleges the death of the father and the wrongful refusal of the defendant to deliver to the plaintiff the bond, mortgage and assignment, which were of the value of $3,700. The complaint further asks to recover the value of the property, if the defendant is unable to deliver the same to the plaintiff.

■ The defendant, in his affidavit in support of the motion, claims that he delivered the bond and mortgage to another daughter of the mortgagee at the request of the latter and under circumstances which, if true, - indicated a delivery to him. Further, that letters testamentary have been issued to one Mortimer W. Potter, as executor of the will of said Reed, and said executor now has the possession of said bond and mortgage, claiming that they are part of the assets of the estate of said testator Reed. Thereupon the court ordered that the executor of the mortgagee be substituted in the place of the defendant Rice, and upon the latter delivering to the •county treasurer said assignment that he be discharged from all liability.

In this, we think, the court erred. The complaint charges the defendant with receiving as trustee the bond and mortgage. and assignment for the specific purpose bf delivering the same over to the plaintiff, and consequently has a right to challenge the validity of the return of the bond and mortgage to the alleged donor. Section 820 of the Code of Civil Procedure authorizes the release of the defendant and the substitution of the real defendant who claims the property sued for on the defendant paying into court the amount of. the debt or delivering thé possession of the property or its value to siick person as the court directs.” The defendant is not ■directed to deliver to the treasurer the property which it is charged he has in his possession as the custodian of the plaintiff, but only to deliver the assignment of the bond and mortgage. This is not sufficient. To be discharged he must deliver over all the property which the plaintiff charges, him with wrongfully withholding. (Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234; Du Bois v. Union Dime Savings Inst., 89 Hun, 382; Bassett v. Leslie, 123. N. Y. 396.)

The defendant does not admit liability to any. one for the bond and mortgage. The essence of an order of interpleader is the admission by the defendant of the full liability set foi)th 'in the complaint to some one and the controversy is between .the contesting •claimants for that property. The defendant asks to be 'discharged without turning over the property on the ground that he has already delivered it and it is in the possession of one of the claimants. The rightfulness of that delivery by the defendant is assailed in this action for the plaintiff claims that the defendant held the property as her trustee and it belonged to her. -It may be there is nothing in the charge made, but that cannot be determined on this motion.

We think, however, the executor of the donor should be brought in as a party. The brunt of the defense in all probability must be borne by him, and he rather than the present defendant should be called upon to undertake it if one is to be made.

The order should be modified by striking out that portion which discharges the defendant upon the delivery of the said assignment to the county treasurer and by providing that the executor of said Reed, deceased, be brought in as a party defendant, and that the complaint be amended by appropriate allegations, with ten dollars costs to appellant to abide event.

All concurred; Williams, J., in result only.

Order modified by striking out that portion which discharges-the-defendant upon delivery of the assignment in question to the county treasurer, and by providing that the executor of said Reed, deceased, be brought in as a party defendant, and that the complaint be amended by appropriate allegations, with ten dollars costs to-appellant to abide event. The form Of the order to be settled before Mr. Justice Spuing upon two days’ notice.

(tejes DETERMINED IN THE FIRST DEPARTMENT IN THE APPELLATE DIVISION, %uV&f 1903.  