
    The Mercantile Safe Deposit Co., App’lt, v. Charles L. Dimon, Adm’r, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed, October 13, 1893.)
    
    Thteivplbader—Safe deposit companies.
    Where the property deposited with a safety deposit company is claimed by the personal representative of the depositor, who cannot produce the key of the box, but explains its loss, and also by one who produces the key and claims under an alleged gift causa mortis, the company may maintain an action of interpleader and be protected from other litigations respecting the property. »
    Appeal from an order which dissolved a temporary injunction restraining the defendants from commencing or prosecuting any action or proceeding in any court against the plaintiff for the recovery of the moneys and property mentioned and described in the complaint.
    Plaintiff is a safe-deposit company, and defendants are rival claimants to the possession of certain property heretofore deposited in one of plaintiff’s safe-deposit boxes, and now in plaintiff’s custody. The safe-deposit box in question was originally hired, and the property in dispute deposited therein, by one Stephen C. Dimon, now deceased. Defendant Charles L. Dimon claims the right of possession by virtue of letters of administration issued to him on the estate of the decedent. Defendant Keery bases her claim upon an alleged gift causa mortis to her from decedent of the contents of the box, evidenced by the delivery to her of the keys of the box, which are in her possession. Defendant Keery also claims that some of the property contained in the box never belonged to the defendant, but has always belonged to her. The transactions had between the parties which led up to this suit were, briefly, as follows: On or about May 8, 1893, defendant Dimon presented to plaintiff proof of his appointment as administrator of the estate of Stephen C. Dimon, deceased, and .asked to be put in possession of the contents of decedent’s safe-deposit box. He did not produce the keys to the box, but gave an explanation of their loss, and plaintiff, having no notice of the adverse claim, began to break open the box, with a view of putting him in possession. At this point defendant Keery appeared with the keys of the box, and asserted her claim to the property by virtue of a gift causa mortis. She notified plaintiff, both orally and in writing, that the property formed no part of the decedent’s estate, and warned plaintiff not to deliver it to the administrator. Plaintiff thereupon refused to give possession to-either claimant, but, as the lock of the box had already been broken, the property was removed to another box for safekeeping. This was done without inspection of the property. Subsequently, at the request of the administrator, he was permitted to inspect-the property in the presence of officers of the company, and a list was made of the articles found. Ho other inspection of the property has been made or permitted by plaintiff.
    
      Alexander & Green (Charles B. Alexander and Charles W. Pierson, of counsel), for app’lt; Wm. R. Wilder, for resp’ts.
   Per Curiam.

It satisfactorily appears to us that the Mercantile Safe-Deposit Company cannot, with safety to itself, deliver the property, the subject-matter of this action, to either of the claimants. Therefore, it has a right to maintain this action of inter-pleader, and be protected from other claims and litigations in-respect to this property. The order appealed from should be reversed, and the motion for continuing the injunction granted, with ten dollars costs and disbursements of this appeal, and ten dollars costs of the motion in the court below, to abide the final event of the action.

Van Brunt, P. J., and Parker, J., concur.  