
    Mars v. Albany Sav. Bank.
    
      (Supreme Court, General Term, Third Department.
    
    
      July 2, 1892.)
    Action to Recover Deposit—Substitution of Defendants—Affidavit.
    In an action against a bank by an administratrix to recover a deposit made by her intestate, the bank filed an affidavit that the deposit was claimed by certain persons as a gift, and asked that they be substituted as defendants. The affidavit did not state any facts showing that such claim was plausible, or that defendant’s officers believed it to be well founded. Held, that an order for substitution was properly refused.
    Appeal from special term, Albany county.
    
      Action by Louise F. Mars, administratrix of John H. Mars, deceased, against the Albany Savings Bank, to recover a deposit. From an order denying a motion for the substitution of parties defendant, defendant appeals.
    Affirmed.
    Argued before Putnam and Herrick, JJ. ■
    
      Tracey & Cooper, (James' Fenimore Cooper, of counsel,) for appellant. Chase & Delehanty, (Norton Chase, of counsel,) for respondent Louise F. Mars. Francis C. Devlin, for respondents Helen Stanley and Kate A. Judge.
   Putnam. J.

Plaintiff, as administratrix of John H. Mars, brings this action to recover a balance of $773.72, claimed to be due from defendant, alleging that at the time of his death John H. Mars had on deposit with defendant $1,186.38. After his death the account was transferred to the credit of the plaintiff as his administratrix. She afterwards deposited various sums to her credit as administratrix, and drew out moneys, and at the time of the commencement of the action there was due her from defendant the sum of $773.72, which plaintiff had demanded of defendant and the latter had declined to pay. The defendant, on the complaint and an affidavit, moved, under section 820 of the Civil Code, for an order substituting Helen Stanley and Kate A. Judge as defendants, and discharging defendant from liability to the plaintiff or said Stanley and Judge, on paying into court the amount claimed in the complaint. The affidavit on which the defendant moved, as far as material, is as follows: “That deponent further says that Helen Stanley and Kate A. Judge, who are not parties to said action, make a demand of said bank to them of said sum sought to be recovered in this action, claiming to be entitled to the same, and to be the owners thereof; that said demand is made without collusion with the defendant herein; that the nature of the claim of said claimants to said property, as far as shown to this deponent, is as follows, namely, that the plaintiff in this action claims the said sum as administratrix of the late John H. Mars, deceased, and that the said Helen Stanley and Kate A. Judge claim the same by virtue of an alleged gift to them of said fund by the said John H. Mars, deceased, during his lifetime. And deponent further says that the defendant has no interest in the question to whom said debt or deposit belongs, and is ignorant of the grounds and merits of the respective claims made to said fund or debt, except as above set forth, and does not know to which of said claimants it may safely pay said fund or debt, and offers to pay the same into court, or to such person as this court may direct.” This is an appeal from an order denying said motion.

It will be observed that the affidavit does not state any facts showing that the claim asserted by Stanley and Judge is well grounded, or that sucli claim is not frivolous, or that the officers of the defendant have doubts as to its validity. For all that appears in the affidavit, the claim of the said parties may not only be frivolous, but the defendant’s officers may believe it invalid. It is true that the affidavit states that the treasurer of defendant is ignorant of the grounds or merits of the respective claims made to said fund, and does not know to which of said claimants it may be safe to pay the same. But it is not stated in said affidavit that the claim of Stanley and Judge is plausible, or that the treasurer believes it is well founded, nor are any facets set out from which it might be inferred that the claim is such as to create a well-founded doubt as to its validity. In Bowery Nat. Bank v. Mayor, etc., 4 N. Y. St. Rep. 565, it was held that, on a motion like this, it was not necessary for an affidavit to show that the demand made on the fund would probably be successful, but only that there was a person not a party to the action who made a demand for the same debt without collusion with defendant. That case was followed in Dreyfus v. Casey, (Sup.) 5 N. Y. Supp. 65; Under these authorities, probably the affidavit in this case should be deemed sufficient. I judge, however, that in the cases cited the facts appearing indicated that the claims of the persons who were substituted as parties defendant were plausible, and not irivolous, and that said facts created a reasonable doubt as to the validity thereof. In' that regard those authorities are not similar to this case.

A different construction was placed upon the provisions of section 820, supra, by the general term of this district, in Williams v. Insurance Co., 8 N. Y. St. Rep. 567. In that case it was held that the court has a discretion to grant or refuse an order to substitute a third party making a claim to a fund. In that case Justice Learned, delivering the unanimous opinion of the court, remarked: “There must always be a real doubt in the mind of the defendant, based upon facts, as to who has the just claim, before interpleader will be permitted or the provisions of the Code of Civil Procedure, § 820, enforced.” The affidavit on which the motion was made in that case seems like the affidavit here. The general term reversed the order in that case made at special term, holding that there should be evidence given as to the validity of the claim asserted to the fund to recover which the plaintiff brought the action. tiee, also, Pustet v. Flannelly, 60 How. Pr. 67. I assume that the judge below felt bound to follow the rule laid down by the general term of this district in the case cited. In the case we are considering the plaintiff seeks to recover a deposit standing in her name as administratrix in defendant’s bank. The defendant asks to substitute other parties as defendants on the mere allegation that they claim the fund. Ho facts are stated from which we could infer that there are any grounds for the claim. In fact, the affidavit on which the motion is founded states that defendant’s treasurer is ignorant of the grounds and the merits of the respective claims. The affidavit does not state that the defendant’s officers have doubts as to whethe'r the claim asserted by Stanley and Judge is invalid or otherwise, or that the claim is plausible, or that they believe it to be well founded. I think it is proper, when an application is made under the provisions of section 820, supra, that the affidavits and papers on which said motion is founded should set out facts showing that there is some foundation for the claim asserted to the fund, or some plausibility in the claim, or such a state of facts as justifies a reasonable doubt in the mind of the moving party as to its validity. To that extent, at least, I think the case of Williams v. Insurance Co., supra, should be followed. The order should be affirmed, with costs.  