
    TAUTON v. GROH.
    September, 1869.
    Under section 133 of the Code of Procedure, it is proper-to grant an order of interpleader to a defendant who admits the debt and desires to pay it, and alleges that a controversy as to the right to collect it exists between the plaintiff and a third person, in which defendant has no interest; although it be not alleged that defendant is in doubt as to the right. So held in foreclosure, where the third person claimed as the payee named in the mortgage, without, however, having possession of the mortgage, and plaintiff" claimed as assignee, having possession of the mortgage, but no other evidence of title.
    Elizabeth" A. Tauton, executrix of Jesse Tauton, brought this action against Jacob Groh and others, in the supreme court, to foreclose a mortgage made by the respondents to one Louisa T. Milman for twelve hundred dollars. Plaintiff claimed that her testator, Jesse Tanton, had, in his lifetime, purchased the mortgage from the said Louisa for a valuable consideration, and that Louisa had assigned it to him, and that plaintiff, as his personal representative, was entitled to collect it.
    Louisa claimed that she was the owner of the mortgage, and had never made any assignment of it to any one, equitable or otherwise, and notified the defendants not to pay it.
    - JSTo written assignment by Louisa T. Milman of the said mortgage appears to have been executed or recorded.
    The respondents, under section 122 of the Code of Procedure, moved at special term for leave to pay the money into court, and be discharged from any liability therefor, and that the said Louisa be substituted in their place and stead as a party defendant. The statements of the different affidavits appear in the opinion.
    The court, at special term, ordered that on payment by the respondents to the county clerk of the amount claimed in the summons and complaint, principal and interest, less ten dollars, costs of the motion, the said Louisa T. Milman be substituted as a party defendant in their place and stead, and that the respondents be discharged from liability to either party; and that Louisa T. Milman, within ten days from the payment of said money into court, execute and deliver a satisfaction of said mortgage, duly acknowledged, to the respondents; and it was therein further ordered, that if the said Louisa did not appear and defend said action within twenty days thereafter, the appellant should be at liberty to apply for an order that said money so deposited be paid over to her.
    
      The supreme court, at general term, on appeal, modified the order, by directing the respondents, as a condition of the substitution, to pay to the appellant the costs of the action up to the time of the motion, but in other respects affirmed the original order. Plaintiff appealed.
    A motion to dismiss the appeal was made in this court, on the ground that the order was not appealable, and was denied.
    
      A. J. Parlcer-, for plaintiff, appellant,
    Insisted that the affidavits were not sufficient to warrant the order, there being no averments that defendants did not know who was entitled to the payment, or were ignorant of the rights of the parties. That under the Code, the rule as to the necessary facts to sustain an interpleader is the same as under the practice in chancery. 8 Paige, 347; 3 Barb. Ch. 573, 391; 1 Abb. Pr. 256, 260; 11 Id. 3; 11 How. Pr. 159.
    
      Dennis McMahon, for defendants, respondents,—Objected that the. order was not appealable, and insisted that the affidavits stated all -that the Code requires. Defendants could not state ignorance, for they gave the mortgage to Mrs. Milman, and had paid interest to her.
   By the Court.

James, J.

This order, as modified by the general term, was both just and right. The action was to foreclose a mortgage made by defendants to Louisa T. Milman, and claimed to be held by plaintiff as part of the assets of her trust. The execution and validity of the mortgage were not denied. It was admitted to be due, and the mortgagors did not wish to control or delay its payment. On the contrary, they had the money, and were anxious to satisfy and „ discharge the mortgage. But the mortgagee si ill claimed the mortgage as her property, and the money due upon it as due to her. She declared that she had never parted with her title to it, and had notified- the defendants of this, and forbidden them to pay it to the plaintiff. The plaintiff had found the instrument among her testator’s effects, but there was no written assignment attached, and none could be found to verify the testator’s title.

Under this state of facts, the defendants procured the order appealed from.

The Code, section 122, provides that “a defendant, against whom an action is pending upon a contract, &c., may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes a demand against him for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, &e.; and the court may, in its discretion, make the order.”

This order was based upon an affidavit of the defendants, entitled in the action, setting forth that said mortgagee has made demands upon them for the payment to her of the amount due on said mortgage, and has notified them not to pay said mortgage to any person but her, and claims that she is the sole and lawful owner of the said mortgage, and that said claim or demand was made without any collusion or understanding between said Louisa and defendants, or either of them: also, upon an affidavit of their attorney, that no answer to the action had been put in, and that he knew, of his own personal knowledge, that Louisa T. Milman had claimed, and now claims, that said mortgage is her property, and that no other person has any interest in the same: also, affidavits of service of notice of this application upon said Louisa T. Milman and the plaintiffs attorney: also the affidavit of said Louisa T. Milman, that said mortgage is her sole and exclusive property; that she never assigned or agreed to assign the same, or any interest therein, nor ever received any consideration for any assignment thereof: also, the summons and complaint; and also, upon the affidavit of the plaintiffs attorney, in opposition, that said Louisa T. Milman did in April, 1866, sell and assign to plaintiff’s testator said mortgage, and the bond accompanying the same.

These affidavits gave the special term jurisdiction in the matter of the application, and the allowance of the order was in its discretion. It is so declared by the Code; and being discretionary, it most likely was not the subject of review. I am, therefore, of the opinion that the appeal should be dismissed.

If, however, the order is appealable, it should be affirmed. Its justice to the defendant is too transparent to require illustration. They make no contest; they admit the obligation, and that it is past due, and desire to pay it. The contest is between others for the money. The instrument is not negotiable. One claimant is the payee named in the mortgage, without possession; the other is the possessor of the mortgage, without any other evidence of title. The only matter in dispute is the ownership of the mortgage. In that the defendants have no interest. It is asserted, that sustaining this order will produce litigation and complication between mother and daughter. But that is a matter this court can not consider. It is not an element in the case. The Code, section 133, provides for protection to a defendant; and if a case is presented showing him entitled to the benefit of its provisions, in the discretion of the court below, this court cannot review it because it may produce complication between the several claimants of-the fund.

On the merits, the order should be affirmed.

A majority of the judges concurred in holding that the order was right upon the merits.

Woodruff, J.,

dissented, on the ground that the provision of the Code relied on ought not to be regarded as changing the requisites or grounds nécessary to make, a case for inter-pleading; and that the mere statement that a third person claims the subject in litigation, without showing that the defendant is ignorant of the right, or is not fully able to protect himself against the claim of the third person, or without showing m some way that interpleading is necessary, is'not enough.

The object of the legislature in enacting section 133 of the Code was not to change the grounds of interpleading, nor to extend the remedy to new cases,t but merely to make the remedy simple, speedy, and summary. Hence the order should not be sustained in a case like the present, where no pretense of doubt is stated. Citing Bedell v. Hoffman, 2 Paige, 199; Bell v. Hunt, 3 Barb. Ch. 391; 8 Paige, 347; 2 Hoffm. Ch. Pr. 99, 100.

Hunt and Mason, JJ., were also understood to be for reversal.

Order affirmed, with costs.  