We are of the opinion that this motion should not have been granted because of the loches of the defendant. The defendant was bound to move with diligence if he desired to withdraw himself from the contest upon the ground of no interest. In the case at bar the action was commenced January, 1889, and the property in dispute was taken possession of by the sheriff. The defendant duly appeared, and excepted to the sufficiency of the securities named in the undertaking given in behalf of the plaintiff, and as early as February 4, 1889, made his motion requiring the plaintiff to file additional or larger security. Even motion to interplead was not made until J une, 1889. During all this time the defendant was as well aware as he now is that Herbert was the party really interested, and yet he made no move to have Hr. Herbert substituted as defendant, although he announced his intention so to do in his affidavit made February 4,1889. It is true that the defendant states in his affidavit at the time of the commencement of this action the said Herbert was absent in Europe, but it is nowhere stated how long prior to the making of this motion to interplead he had returned. From the statements contained in the affidavits presented by the plaintiff upon this motion it would appear that such return had taken place at a period long anterior to the’motion, and yet no effort to obtain this substitution seems to have been made, but the defendant went on litigating the action in his own name. It is true that there appears among the moving papers a written demand made by Herbert upon the defendants for the property in question, dated June 4, 1889, but it is apparent that this paper came into existence for the purpose of this motion, and conveyed no information to the defendant of any claim of which he had not been fully aware at the time of the commencement of this action. The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied. All concur.
United States Land & Investment Co. v. Bussey.
(Supreme Court, General Term, First Department.
November 7, 1889.)
Interpleader—Laches.
Where an action of replevin was brought in January, 1889, and defendant appeared and made a motion in the case, February 4th, and knew at the time that a non-resident was the real party in interest, a motion by defendant to interplead, and substitute the non-resident as defendant, made in June, was too late.
Appeal from special term, New York county.
The United States Land & Investment Company sued W. G. Bussey in replevin, to recover possession of a mortgage bond. From an order of inter-pleader substituting H. A. Herbert, a non-resident, as defendant, plaintiff appeals.
Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
Waller S. Coroles, for appellant. W. S'. Bussey, for respondent.
Case Details
7 N.Y.S. 495
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