
    Sarah McHugh, Ex’rx, Resp’t, v. Jules Astrophe, Ex’r, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Interpleader—Security for costs.
    A third person substituted as defendant by order of interpleader in invitum cannot be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.
    Appeal from order made by Judge Fitzsimons.
    
      F. B. Morel, for resp’t; Booraem, Hamilton & Beckett, for app’lt.
   Ehrlich, Ch. J.

The question involved is whether a third person substituted as defendant by order of interpleader can be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.

Interpleader is an equitable proceeding governed by equitable principles.

The legal title to the fund is in the plaintiff and presumptively she is entitled to it. The substituted defendant comes in as a claimant, and in respect to such claim is nominally, though not technically, a plaintiff. He is a non-resident and irresponsible.

Under such circumstances, the imposition of the condition might be deemed a valid exercise of power. But the difficulty is that there is no statute requiring such substituted defendant to give security for costs. See Republic v. Soto, 112 N. Y., 313; 16 Civil Pro., 270 ; 20 St. Rep., 749 ; Coates v. Morris, 1 Law Bul., 29.

If the third party had applied for leave to come in, security might have been required as a condition, but that is not in this case. lie is brought into the litigation in inviium and cannot be hampered by conditions; besides being an executor he could not be said to be unreasonably defending a litigation to which his presence has become necessary to a complete determination of the controversy.

The order appealed from must, therefore, be reversed, with costs.

Uewburger, J., concurs.  