ALEXANDER VAN WAGONER, as Executor, etc., of JEANNETTE G. R. DURKEE, Deceased, Respondent,
CHRISTOPHER A. BUCKLEY, SR., and Others, as Executors, etc., of WILLIAM H. KELLY, Deceased, Defendants. THE SUPERINTENDENT OF BANKS OF THE STATE OF NEW YORK and GEORGE W. EGBERT, Special Deputy Superintendent, Appellants.
APPEAL by the Superintendent of Banks of the State of New York, in charge of the Carnegie Trust Company, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of July, 1911, directing
said Superintendent of Banks and the Carnegie Trust Company to forthwith pay over to the city chamberlain of the city of New York to the credit of this action the sum of $3,600.26 out of the assets of said Carnegie Trust Company in his hands for the purposes of liquidation.
Frank M. Patterson and J. Elmer Melick, for the appellants.
James A. Wilson, for the respondent.
Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice MADDOX at Special Term.
JENKS, P. J., HIRSCHBERG, BURR, WOODWARD and RICH, JJ., concurred.
The following is the opinion delivered at Special Term:
For some time prior to the death of plaintiff's testatrix and up to about December 5, 1908, there was on deposit with the Carnegie Trust Company $3,600.26 to the credit of the account of said testatrix, who died about October 27, 1907, and whose last will and testament was duly probated about January 15, 1908, letters testamentary thereon issuing out of the Surrogate's Court of Kings county to plaintiff.
Plaintiff as such executor thereafter made demand on the trust company for the payment to him of that sum, which the trust company refused to make, and this action was brought; thereafter, upon the motion of the trust company for an interpleader, under section 820 of the Code of Civil Procedure, an order was made herein on December 5, 1908, upon the consent of the attorneys for all the parties, that William H. Kelly be interpleaded and substituted in its place and stead, that this action be discontinued as to it and that it be discharged from liability as to said sum to either the plaintiff or said Kelly, upon its depositing said sum in said Carnegie Trust Company, less ten dollars costs allowed to it, to the credit of this action and subject to the order of this court.
Thereupon the relation of debtor and creditor as between the trust company and those claiming the money to the credit of
said account ended and a new status and relation were created as to the fund so continued by said ...