
    Sophia A. Smith, Appellant, v. Isidor A. Smith, Respondent.
    Argued October 18, 1954;
    decided December 31, 1954.
    
      
      Charles Gottlieb and Benjamin Bernstein for appellant.
    
      Ralph D. Ray and Edward R. Neaher for respondent.
   Per Curiam.

The question whether there may be a dual burden of proof in the usual interpleader case, so that neither party may recover unless he sustains the burden of establishing his claim, is not presented by the present case — which was tried before a jury by consent of both parties and was otherwise treated as an action at law in replevin. In any event, in the present case there are only two possible owners of the stock in suit, either plaintiff or defendant. The issue as to which of the two parties owns the stock turns here upon identical questions both of law and fact. If one of the two claimants is not the owner, it must follow that the other claimant is the owner.

Accordingly, since the negation of one claim in our present case would automatically establish the other (see Russ v. Russ, 263 N. Y. 625, 626), no error was presented by reason of the trial court’s failure to charge the jury that there was a dual burden of proof.

The judgment should be affirmed, with costs.

Fboessel, J.

(dissenting). I dissent and vote to reverse upon the ground that the trial court erred in charging that the burden of proof rested wholly upon the plaintiff and in refusing to charge, as requested, that the defendant had a like burden before he could recover. Before either adversary party in the case of interpleader can recover, the burden of proof rests upon such party to establish his claim by a fair preponderance of the evidence. To put it otherwise: each claimant must carry his own burden and establish his own title; he may not rely on the weakness of the other’s claim (Clark v. Mosher, 107 N. Y. 118, 122; Willat Film Corp v. Central Union Trust Co., 221 App. Div. 180, 183; Savage v. McCauley, 301 Mass. 162; County of Union v. Hopkins, 95 N. J. Eq. 444; Wetzel v. Collin, 170 Md. 383; Prudential Ins. Co. of America v. Cahill, 321 Ill. App. 45; Neiderlehner v. Weatherly, 73 Ohio App. 33; see, also, Bata v. Bata, 306 N. Y. 96, 101, 109).

Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur in Per Curiam opinion; Fboessel, J., dissents in an opinion; Van Vooehis, J., taking no part.

Judgment affirmed.  