McHugh v. Astrophe 20 N.Y.S. 877

Ehrlich, C. 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 nonresident 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 of Honduras v. Soto, 112 N. Y. 313, 19 N. E. Rep. 845; Coates v. Morris, 1 N. Y. 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 this case. He is brought into the litigation in innitum, 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. All concur.