Opinion
April, 1910.
In each case judgment affirmed, with costs. No opinion. Hirschberg, P.J., Woodward and Jenks, JJ., concurred; Burr, J., read for reversal, with whom Thomas, J., concurred.
I dissent solely upon the ground that the defendant Annie E. Lozier, the only defendant appealing, is entitled as matter of right to a jury trial. (Code Civ. Proc. § 968.) Plaintiff states a cause of action against this defendant to recover a chattel, to wit, a bank book. Plaintiff also attempts to state a cause of action against the defendant banks to recover a sum of money only. Whether these causes of action may be united or not is not before this court. If there was an improper joinder, it was waived by omission to demur on that ground. The action is not an interpleader in equity. Such an action may only be brought by one who has a fund which it is willing to pay over but does not know to which of two rival claimants to make payment. Nor is it the case of where the holder of a fund has been sued by one of the claimants and by motion has interpleaded the other and paid the money into court pursuant to the provisions of section 820 of the Code of Civil Procedure. This would give the action the character of a bill of interpleader. ( Clark v. Mosher, 107 N.Y. 118.) Inasmuch as the causes of action are separate and distinct and the only cause of action against the defendant appellant is one in which a jury trial is secured to her upon seasonable demand by constitutional provision, and inasmuch as the objection was properly taken to proceeding without a jury, this constitutes error for which the judgments should be reversed. Thomas, J., concurred.