
    Mariannna Clark, Resp’t, v. Alfred Mosher, as Adm’r, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    1. Action—When of an equitable nature—Interpleader,
    The-plaintiff brought an action against an insurance company upon a policy of insurance, and the company admitting its liability on the policy, set up that the defendant’s intestate also claimed the amount of the policy, and by proceedings in the nature of á bill of interpleader, on payment of the fund into court, the plaintiff was required to substitute the defendant's intestate as defendant; the object of the action then being to determine the conflicting claim of the plaintiff and defendant to the fund in court: Held, that the action was of an equitable nature and triable by the court.
    8. Same—Pbactice.
    In such case, the trial judge may empanel a jury and submit to it a single question of fact, to be answered in the affirmative or negative. The judge also has the power to disregard the finding of the jury on the question thus submitted, and to find the fact the contrary way, and direct judgment pursuant to his findings.
    This action was originally commenced against the insurance company to recover money due on a policy. Charles A. Mosher (the intestate whom the present defendant represents) claimed the same sum of money as owner of the same policy and was substituted as defendant, the original defendant paying the money into court. The cause was placed on the circuit calendar of October, 1885. When it was called, the defendant’s counsel stated it was an equity case; the plaintiff’s counsel said nothing; the court said it would direct a jury to be placed in the box to which it might, if it deemed proper, submit any specific question of fact.
    After the conclusion of the evidence, the court submitted a question to the jury, to which they responded, “Yes.” This verdict was in the plaintiff’s favor. The defendant moved that the verdict be set aside and the court find the question contrary to the finding of the jury. The plaintiff opposed the motion. In September, 1886, the court granted that motion, and found that same question favorable to defendant and contrary to the jury findings; and also found other facts and decided in favor of defendant, on which judgment was entered. The plaintiff subsequently moved to set aside this order and judgment on the ground that the action was at law, and the judge was bound by the verdict, except to set aside and grant a new trial. This motion was denied.
    
      N. C. Moak, for app’lt; E. Countryman, for resp’t.
    
      
       Reversing 5 N. Y. State Rep., 84.
    
   Rapallo, J.

—If the counsel for the defendant was right in the position which he took at the circuit, that this was an equity, case triable by the court, the practice adopted by the trial judge in empanelling a jury and submitting to it a single question of fact, to be answered in the affirmative or negative, was correct. The judge was also right in holding that he had the power to disregard the finding of the jury on the question thus submitted, and to find the fact the contrary way; and the judgment for the defendant entered pursuant to his findings and conclusions was regular. Carroll v. Deimel, 95 N. Y., 255.

The court, at general term, held, on the motion to set aside that judgment, that the action was one of law, for the recovery of money only, in which the plaintiff was entitled to a trial by jury; that the judge consequently had no power to disregard the verdict and substitute his own findings, and that the judgment entered thereon was irregular.

We are of opinion that the trial judge was right in holding, as claimed by the defendant, that the action was of an equitable nature and triable by the court.

The plaintiff had no right of action at law against the defendant, and did not seek to recover any money from him. The money in controversy was in court, having been paid into court by a third party, the Phoenix Mutual Life Insurance Co., under an order made on the application of that company pursuant to section 820 of the Code. The plaintiff had brought kn action at law against the company upon a policy of insurance, and the company, admitting its liability on the policy, set up that the defendant’s intestate also claimed the amount of the policy, and by this proceeding, in the nature of a bill of interpleader, on payment of the fund into court, the plaintiff was required to substitute the defendant’s intestate as defendant, and the object of this action was to determine the conflicting claims of the plaintiff and the defendant to the fund in court. Neither party had any right of action at law against the other, but by this equitable proceeding, authorized by the Code, the insurance company, against whom both claimed a legal cause of action, was discharged, and they were brought together to litigate the question which of them had the better right to the fund in controversy. No right of trial by jury ever existed in such a case.

The order of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except Peckham, J., not sitting.  