
    Charles C. Schildwachter, Appellant, v. The Mayor, etc., of New York, Respondent.
    (New York Common Pleas
    —General Term,
    April, 1895.)
    In an action for rent the defendant made a motion to interplead one who claimed such rent adversely to the plaintiff, hut on the return day of the motion the adverse claim was withdrawn and abandoned. Thereupon the court ordered the amount of the rent, without interest, to be paid to the plaintiff and the action discontinued, without costs. Held, error; that interest having been demanded in the complaint, and no defense to the claim made, plaintiff was entitled to interest as matter of right and the same could not be disallowed, and that a discontinuance without payment of costs could not be ordered on the application of a defendant confessedly liable for the demand in suit.
    Appeal from an order .directing payment to plaintiff of the claim in suit, without interest, and discontinuance of the action, without costs.
    Action for rent.
    
      W.. E. Benjamin, for appellant.
    
      Francis If. Scott and John L. O’Brien, for respondent.
   Bischoff, J.

The proceeding, of which the order appealed from is the outcome, was instituted by defendant as a motion for interpleader under section 820 of the Code of Civil Procedure. The order, however, accomplished a very different result from that originally sought, for thereby the action was directed to be terminated, as against all parties concerned, upon defendant’s paying the plaintiff the amount of his claim without interest or costs.

In that interest and costs were thus disallowed lies the appellant’s grievance.

The claim in suit was for two months’ rent of certain premises leased by defendant from plaintiff’s assignor for use as a fire engine house, for the amount of which rent demand was duly made upon the proper officer and the action instituted after an interval of six months.

Two months after the commencement of the action this motion was. made upon the ground that one Annie Foley laid claim to the fund in question, but upon the return day of the motion the adverse claim was abandoned, and the claimant consented to the payment to plaintiff of the amount sued for. The order now before us was thereupon made, and it was thereby provided that the sum of two hundred and twenty ($220) dollars due for rental of premises Ros. 104 and 106 East One Hundred and Twenty-sixth street, during the months of February and March, 1894, be and the same hereby is directed to be paid over to Charles C. Schildwachter, and that the mayor, aldermen and commonalty of the city of Rew York thereupon be discharged from liability to either the plaintiff above-naméd or said Mrs: Annie Foley. And that the said defendants have five days after entry of this order to pay the said sum, and the foregoing action be discontinued, without costs to either party.”

The order to show cause, upon which the motion was instituted, recited the fact that it was made upon “ all the papers and proceedings herein,” and the order appealed from recited the order to show cause. Hence, the complaint in the action must be assumed to have been before the court, and in the complaint interest was demanded from appropriate dates.

Thus, such interest was as much a jiart of plaintiff’s claim as any other item constituting it, and, the claim standing undisputed, he was entitled to interest as of absolute right. It was, therefore, not to be disallowed, “ however commendable the motive of the denial ” (Peetsch v. Quinn, 7 Misc. Rep. 6; Sibley v. Ins. Co., 15 Civ. Proc. Rep. 316), and in this regard the order is not to be supported. Failing the adverse claim, there was no further question but that defendant’s motion for interpleader could not prevail, it having accepted the claimant’s withdrawal and abandoned the prosecution of the motion upon the original ground.

The action was one at common law for the recovery of a sum certain, and no counterclaim had been interposed. The court could not of its own motion order a discontinuance (Wilcox v. Daggett, 15 N. Y. Wkly. Dig. 208), nor do we find any grounds for the granting of the defendant’s motion without the imposition of costs as a condition thereto.

The costs provided by statute are awarded upon principles of natural justice, that he who has by his resistance subjected another to the expense of litigation in the enforcement of a just demand should make indemnity for the expense (Pars. Costs, p. 3, § 5; Report of Code Commissioners, 1848, p. 208); and while a plaintiff has been permitted on his motion to discontinue an action at law without costs where it appeared that the demand was not enforcible because the defendant was an infant, a bankrupt, or otherwise exempt, which facts were unknown to the plaintiff when the action was instituted (Park v. Moore, 4 Hill, 592; Smith v. Skinner, 1 How. Pr. 122; Cuyler v. Coats, 10 id. 141; Wellington v. Classon, 18 id. 10; Taaks v. Schmidt, 19 id. 413 ; Smith v. Britt, 8 N. Y. Wkly. Dig. 76 ; Van Buren v. Fort, 4 Wend. 209; Arnoux v. Steinbrenner, 1 Paige, 82; Phœnix v. Hill, 3 Johns. 249), or where, since the action was commenced, a change in the law exempted the defendant from liability (Gale v. Wells, 7 How. Pr. 191; Porter v. Jones, Id. 192), no precedent is to be found for the enforced discontinuance of%r an action without the payment of costs upon the application of a defendant confessedly liable for the demand in suit.

Assuming, therefore, that there is some discretion which may be exercised by the court where the plaintiff applies for leave to discontinue an action without costs in the instance ruled upon the cases above cited, it remains that the facts here appearing afford no justification for the order appealed from, and an arbitrary denial of costs is within the province of the General Term to review. Claflin v. Robertson, 23 N. Y. St. Repr. 305.

In this case the plaintiff was in no way in fault, the institution of the action being necessitated by the defendant’s failure to pay its just debt. So far as appears, the plaintiff was entitled to recovery and to the accrued costs as of course. Code Civ. Proc. § 3228, subd. 4. Obviously, the action was not converted into an equitable one, in which the costs are in the discretion of the court (§ 3230), since the motion for inter-pleader was not granted. Clark v. Mosher, 107 N. Y. 118.

The order appealed from should he reversed, with costs of this appeal and costs of the Special Term.

Daly, Ch. J., and Pryor, J., concur.

Order reversed, with costs.  