
    Amelia Mahro, by Guardian, etc., Resp't, v. Greenwick Savings Bank, App'lts.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Interpleader—Petition.
    A petition for interpleader, under section 115, chapter 689 of 1892, which does not state any facts showing the nature of the claim asserted, or that the claim is not frivolous, or that the claim creates any reasonable doubt as to which party is entitled to the fund, or that the claim has any foundation in fact, is sufficient.
    2. Same.
    There must be some reasonable foundation for a claim asserted, to entitle defendant, while admitting its liability, to have the claimants substituted by order of interpleader.
    Appeal from an order denying defendant’s motion to inter-plead. another as party defendant.
    Thomas F. Murtha and Jos. A. Gray, for app’lt; H. B. Osgodby, for appellee.
   O’DWYER, J.

This is an appeal from an order denying a motion made by the defendant to interplead one Charles Mahrs as the party defendant to the action and for other relief. The mo-ion was denied on the ground and for the reason that the petition of the defendant did not state the grounds of the alleged claim by Charles Mahrs, an fails to show that tire said Charles Mahrs makes such claim to the fund that he should be made a party defendant, or for the granting of the other relief prayed for.

The motion was made under section 115, c. 689, Laws 1892, and it is therein provided that:

“In all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons not parties to the action, who claim the said fund the court in which the action is pending, may on the petition, etc., make an order amending the proceedings in the action by making such claimants parties defendants thereto.”

The petition on which the defendant moved, as far as material, is as follows:

“That one Charles Mahrs, who is not a party to this action, has made a claim against your petitioners for the money deposited by the said Amelia Mahro, which is the same fund, which this action is brought to recover, and has claimed and claims that the* said money and fund belong to and are payable unto him, and has forbidden your petitioners to pay the same to any other person, and the said plaintiff in this action also claims the said money and fund as her own; that the said claims are each made without any collusion with your petitioners; that your petitioners, in making'this application, are not acting in collusion with or at the reouest of either of tie said claimants of the said money, have not been indemnified by ei ther of them, are indifferent between them in respect to the said money, have no beneficial interest in the said money, and have no interest in the question to whom the same belongs; that they are ready and willing to pay the said money now standing to the credit of the said account, on production and surrender of the said passbook, and upon the said Charles Mahrs being made a party defendant to this action, to whichever of the said claimants this court shall decide the same to belong, and to keep the same on deposit to the credit of this action until final judgment in this action so amended as provided by the said section 115 of the said act. But, by reason of such conflicting claims to the said money, your petitioners do not know, and cannot determine, without hazard to themselves, to which of the said claimants the said money belongs, or to which of them they can safely pay the same, "and they cannot safely pay the said money to either of the said claimants until the said Charles Mákrs shall have been made a party to this action, and this court shall decide to which of the said claimants the said moneys belongs.”

It is clear that the defendant asks to substitute another party as defendant on the mere allegation that he claims the fund. The petition does not state any facts showing the nature of the claim asserted by Charles Mahrs, or that the claim is not frivolous; and without such facts it is impossible to say whether such claim creates any reasonable doubt as to which party is entitled to the fund, or that the claim has any foundation in law.

In Bank v. Yandes, 44 Hun, 59, it is held:

“The rule now is that a reasonable doubt must exist in order to justify the bringing of an action of interpleader.”

And this action is cited with approval in Feldman v. Grand Lodge, 46 St. Rep. 122, where O’Brien, J., says:

“The rule is now settled that there must be some reasonable foundation for a claim asserted, to entitle defendant, while admitting its liability to have such claimants substituted by order of interpleader.”

The case of Williams v. Insurance Co., 8 St. Rep. 567, is also an authority in point. Judge Learned delivering the opinion said: v

“There must always be a real doubt in the mind of the defendant, based upon facte, as to who has the just claim, before inter-pleader will be permitted.”

See, also, Mars v. Albany Sav. Bank, 46 St. Rep. 464, and the same case, again reported upon a subsequent appeal, 23 N. Y. Supp. 658.

It is suggested, in the brief of the defendant’s counsel, that, if the petition is defective in not setting forth the grounds of the alleged claim of Charles Mahrs, yet such grounds do appear in the affidavit of the plaintiff, and consequently were before the court on the motion.

Plaintiff states, in her affidavit:

“That her father has no interest whatever in the fund, and he never made any such claim, to her knowledge, until a short time before the commencement of this action, when she was informed he made such claim to the officers of the bank. That on December 7, 1895, she attempted to draw some money from the said account, the defendant refused to permit her to do so, and the officers of whom she made demand told her that the bank book did not belong to her, but had been stolen. Plaintiff denied that ‘‘such was the case, and later on the same day she was permitted to draw $75. On December 12, 1895, she again went to the bank to draw some money, but was refused permission to- do so; the bank’s officer’s giving as an excuse that the hook had been stolen, and did not belong to her. That the pass hook was isssued in her name, and belongs to her, and has always been in her possession, and no other person has ajby just or reasonable claim to it, or the money recorded therein.”

From these statements it appears that an interest in the fund is claimed by Charles Mahrs, the father of the plaintiff,' but for how much thereof, or upon what ground, does not appear; also that, upon two different' occasions, when the plaintiff attempted to draw money from defendant upon her account, some officer of the bank stated that the bank book had been stolen, and did not belong to her. From whom it is claimed the book was stolen, or at what time, does not appear. The order appealed from should be affirmed, with costs.

Order affirmed, with costs.

All concur.  