
    The German Savings Bank in the City of New York, App’lt, v. Emanuel Friend et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed October 24, 1892.)
    
    Interpleader—Savings banks.
    A savings bank cannot implead an adverse claimant of a deposit where the claimant claims by title superior to the depositor, as the bank cannot dispute the title of its depositor, unless the third party, who claims to have been despoiled of his money, proceeds by process of law to enforce his rights.
    Appeal from order of special term denying motion for an injunction.
    
      Sanders, Wagner & Auerbach (Lewis Sanders, of counsel), for app’lt; McIntyre & Settel (Frederick B. House, of counsel), for resp’ts.
   Gildersleeve, J.

On or about the 7th day of April, 1892, the defendant Guttman deposited the sum of $180 with the plaintiff, which is a savings bank organized under the laws of this state. Subsequently, the defendants Friend and House made a demand upon the plaintiff for said sum so deposited, claiming that it had been assigned to them by the defendant Guttman, and they brought a suit in the city court to recover such sum, which suit is defended by this plaintiff on the ground that it knows of no •such assignment by Guttman to Friend and House. Plaintiff further claims that the defendant Guttman still claims the deposit as his own, and that the defendant Podrasky also has made a demand on plaintiff for it, claiming that said money was stolen from him by the defendant Guttman. Plaintiff has therefore brought this action to restrain the defendants Friend and House from further prosecuting their action in the city court, and also to compel the respective defendants to interplead among themselves, and praying that plaintiff, upon the payment into court of the said sum, be discharged from all liability, and be allowed its costs and disbursements. Plaintiff applied to the court for an injunction restraining the defendants Friend and House from a further prosecution of their action in the city court, and from the order denying the motion plaintiff appeals to the general term.

From the affidavit of defendant Guttman, it appears that he admits making the assignment to Friend and House, and denies he has made any claim to the said money since such assignment. This disposes of any apprehension that plaintiff may feel as to the position of the defendant Guttman. It also appears from the appeal papers that the charge of stealing the money made by the defendant Podrasky against the defendant Guttman was dismissed by the grand jury. We think, therefore, that the plantiff’s fears of the claim of Podrasky are too shadowy and unsubstantial to be given serious consideration. • Guttman’s claim is disposed of by his own affidavit, in which he swears he assigned it to Friend and House. Podrasky, as plaintiff asserts, claims by title superior to the depositor, Guttman, alleging that Guttman stole the money from him; but the court will refuse to allow a savings bank to implead an adverse claimant of a deposit in the bank, where claimant claims by title superior to depositor, as the bank cannot dispute the title of its depositor, Lund v. Seaman’s Sav. Bank, 20 How., 461; unless, indeed, the third party who claims to have been despoiled of his money proceeds by process of law to enforce his rights, which Podrasky has not done. See Lund, v. Seaman’s Sav. Bank, 23 How., 258.

We are of the opinion that the plaintiff is^not entitled to an interpleader, and therefore no right to the injunction sought existed. ,

The motion for the injunction" was properly denied. The order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, J., concurs.  