
    EDWARD KEMP and others, Plaintiffs and Respondents, v. WELLS S. DICKINSON, Appellant, and MARIA DE CARMO, GOMES DE MAGELHAES and others, Defendants and Respondents.
    
      .Action of interpleader — when a commission to talce testimony ma/y issue therein— when the order should, not direct that the testimony ma/y he used on the tidal of all issues that may arise.
    
    Appeal from an .order made at Special Term, directing a commission to issue herein to take testimony.
    The action was brought to compel an interpleader respecting a fund held by the plaintiffs between the defendant Dickinson and the other defendants. Dickinson denied the right of the plaintiffs to compel him to interplead. The other defendants admitted it, and set up in their, answers the various facts which they relied upon to establish their rights in the fund. Upon the motion of •one of the defendants, the order in question was made. It contained, among others, the following provisions:
    “That the plaintiffs and the defendant Dickinson be at liberty'to join in said commission, and that the trial of this action be stayed until the return thereof. ■
    “ And it is further ordered, that the testimony to be taken under the commission hereinbefore mentioned, may be. used on the trial of the issues in this action, and also upon the trial of any issues which this court may hereafter direct to be tried as 'between the défendants in this action, or any of them, as to the right of any of said defendants to the fund, or any part thereof, now in the hands of the plaintiffs, and mentioned in the complaint herein.”
    The court, at General Term, said : “ This is an action of inter-pleader. The right of the interpleader is denied by one of the defendants. This defendant sets up in his answer facts and circumstances which, he contends, are inconsistent with and bar the right of the plaintiffs to judgment of interpleader. The issues thus-raised must first be tried before the rights of the respective defendants, as between themselves, can be litigated in this action. If the defendant, who contests the plaintiffs’ right to an interpleader, be successful, the complaint will be dismissed, and the parties remitted to their ordinary actions.
    “ It is not apparent from the papers, that there are, as yet, any issues as between the co-defendants. But if such be the case, these issues are conditional upon the plaintiffs’ success in establishing their right to the interpleader. This being, so, the court below should not, by a special provision in its order, have extended the use to be made of the testimony (when procured under the commission), to subsidiary issues, dependent, for their existence as subjects of litigation herein, upon the result of the primary and direct issue between the plaintiffs and the defendant Dickinson. In legal contemplation, such subsidiary issues are to be joined, after the court has decreed the interpleader. It is the issues to be thus formed to which reference is made in the Code. (§ 888, subd. 5.)
    “ The order should be modified by limiting the use of the testimony, to be taken under the commission, to the trial of the issues in this action, as between the plaintiffs and the defendants, without costs of this appeal.
    “ The precise form of our order is stated in the list of decisions handed down.”
    
      Joseph B. Flounders, for the appellant.
    
      Edward Patterson, for the respondents.
   Opinion

Per Curiam.

Present — Davis, P. J., Brady and Barrett, JJ.

Order modified by striking out 'the'following words: “ And also upon the trial of any issues which the court may hereafter direct to be tried, as between the defendants in this action, or any of them, as to the right of any of said defendants to the fund or any part thereof, now in the hands of the plaintiffs and mentioned in the complaint herein,” and affirmed as modified, without costs.  