Opinion
March, 1899.
T.M. Tyng, for appellant.
Strong Cadwalader (Henry S. Wardner, of counsel), for respondent.
This is an appeal from an order affirming an order granting a motion made by the defendant under section 115 of the Laws of 1892, chapter 689, known as the "Banking Law" to have one Alexander McKeown made a party defendant in this action. Under the decision in the case of Mahro v. Greenwich Savings Bank, 16 Misc. 537, this order must be affirmed as hereinafter modified.
The case at bar is much stronger than the case above cited as in this case it is conceded that Alexander McKeown had an interest in the fund in question, said fund having been deposited with the defendant bank in the name of the plaintiff and said Alexander McKeown jointly.
Under the authority of Faivre v. Union Dime Savings Bank, 13 N.Y. Supp. 423, the order appealed from must be modified by striking out the words "Ordered that the said funds on deposit which are the subject of this action remain with the defendant Bank for Savings upon the same interest as other deposits of like amount until the final determination herein," and inserting in place thereof "That the said defendant Bank for Savings be required to deposit said fund in court according to the usual practice in such cases, within ten days after entry of this order and service of notice of entry upon said defendant bank, unless the parties within that time stipulate in writing that the said fund remain with said bank," and as so modified the order of the Special and the General Term is affirmed, with costs to defendant the Bank for Savings, to be paid out of said fund.
MacLEAN and LEVENTRITT, JJ., concur.
Order modified, and as so modified affirmed, with costs to respondent the Bank for Savings, to be paid out of said fund.