(No. 83.) Complaint in the nature of a bill of interpleader.1 Title of the Cause. The plaintiff complains of the abovenamed defendants, and alleges the following facts, constituting his cause of action: That the plaintiff is engaged in the business of forwarding and transportation of merchandise at the city of Albany, where he has a freight warehouse or depot. That in the month of January, 1858, the plaintiff received from the defendant, A. B., of the city of NewYork, five several boxes of merchandise, to wit: [Describing them generally], consigned to the plaintiff with instructions to deliver the same to the defendant, C. D., or to his order, on payment, by him, of freight, charges, and expenses. That on the receipt of said merchandise, the plaintiff delivered to said defendant, C. D., the bills of lading thereof, and received from him the amount of the freight, charges, and expenses on said merchandise, and gave him a 1 A bill of interpleader is exhibited when two or more persons claim the same debt, duty or other thing from the plaintiff, by different or separate interests, and he not knowing to which of the claimants he ought, of right, to render the debt or other thing, fears that he may suffer injury from their conflicting claims, and thereupon prays that they may be compelled to interplead and state their several claims, so that the court may adjudge to whom the debt, duty or other thing belongs. (Story Plead., § 291.) A mere claim is a ground of interpleader, and there is nothing in the Code which takes away the right to resort to this remedy. The remedy prescribed by § 122 is merely concurrent. (Beck v. Stephani, 9 How., 193.) receipt therefor, and at the same time received from said defendant written directions to deliver two of said boxes, to wit: [Specifying them], to the defendant, E. F., at his store in the city of Albany, and the balance thereof to the defendant, C. D., at his store in the city of Albany. That on the same day, and before any of said boxes were delivered, the said plaintiff was notified by the said defendant, A. B., on his own behalf, and on behalf of the defendants, G. H. and K. L., not to deliver up or part with the possession of said goods, or any part thereof, inasmuch as they, the said defendants, claim to be still the owners of said merchandise, to wit, the said defendant, A. B., of &c., [stating what part], the said defendant G. H., of [stating what part], and the said defendant K. L., of [stating what part], and notifying the plaintiff, further, that said defendant, A. B., had, by fraud, procured the sale of said goods to him by said defendants, with the intention of cheating and defrauding the defendants out of the possession thereof, and of their property therein, and that said defendants claim that said sale was fraudulent and void, and that they were and are still the owners of and entitled to the possession of said goods. That on the next day the said defendants, C. D. and E. F., called on plaintiff and demanded the delivery of said goods and claimed to be the owners, and entitled to the possession thereof, in the proportions above set forth, which delivery the plaintiff refused to make, and said defendants threaten to commence separate actions against him to recover such possession. The plaintiff avers, that he is still in possession of said goods; that he claims no interest whatever, therein; that this action is brought solely to protect his own rights and interests, and not by collusion with the defendants, or either or any of them.1 Wherefore the plaintiff demands that the said defendants may be required to interplead together, and settle their conflicting claims, and that it may be adjudged to which of said defendants, respectively, the said property and merchandise belongs, and in what proportions, and that said plaintiff may be absolved from all claims and liabilities in respect thereto; and that said defendants, and each of them, may be restrained from taking possession of said property, or any part thereof, or from commencing any action against the plaintiff in respect thereto; and that a receiver 2 may be appointed by the court, with the usual powers, to take possession of said goods and merchandise, pending the litigation, and until the further order of the court, and for such other or further relief as to the court shall seem proper, with costs of action, to be charged on the property in dispute, or which shall come to the hands of such receiver. 1 As to the necessity of inserting these allegations, see opinion of the court, in Beck v. Stephani ( 9 How., 197.) It matters not in what capacity the plaintiff has incurred the debt, liability, &c., whether as stockholder or tenant, or an ordinary agent or public officer, or as an accidental recipient of the property. He has a right to claim the intervention of the court for his complete indemnification and relief. (Ibid.) But if he has parted with the property, he cannot sustain an interpleading bill upon an undertaking to pay over the value to the party entitled. (1 Mer., 405; 2 Ves. & B., 334.) 2 This seems to be the proper prayer, in case tangible property, other than money, is the subject of the suit. (Beck v. Stephani, 9 How., 193.) If the subject of the suit is money in the plaintiff's hands, he must bring it into court; or, if money to become due, he must offer to bring it into court, and must so allege in his complaint. (Story's Eq. Pleadings, § 291. ) (No. 83.) Supplemental complaint, making an additional party defendant and alleging facts as to such defendant of which plaintiff was ignorant when his former pleading was made. The original complaint is given ante, No. 24. SUPERIOR COURT-OF THE CITY OF NEW-YORK. Benjamin F. Hunt William Mootry and Jane B. Mootry his wife. Benjamin F. Hunt, plaintiff, by way of supplement to the complaint herein, by leave of the court for that purpose first had, complains and alleges: First. That this action was commenced against William Mootry alone, on the 7th day of November, 1855, by the personal service of the summons and complaint, as the plaintiff is informed and believes, to which complaint the plaintiff refers as if the same were herein repeated, and as part of this supplemental complaint. Second. That on or about the 6th day of December, 1855, the said William Mootry put in his answer, in which he claims, among other things, that Jane B. Mootry, the wife of the said William Mootry, has, ever since February 1 The complaint is made under section 177, of the Code. A supplemental complaint is also allowed and necessary, by section 121, in case of death, marriage or other disability of a party to continue the action, after one year, by or against his representative or successor in interest. The precedent given may be readily adapted to the case of a supplemental complaint under section 121. As to the nature and form of a supplemental complaint, and what it should contain. (See Pleadings 378 383.) or March, 1854, held and possessed the paintings mentioned in the complaint as her own property, free from all control or interference by or on the part of her husband, and that the same are not in his possession or under his control, which claim, the plaintiff insists, is wholly unfounded in law and fact. Third. That until the said answer the plaintiff was ignorant of the said claim of the said Jane B. Mootry. Wherefore the plaintiff demands judgment, as in the original complaint demanded, and that the defendants and each of them restore the said paintings to the plaintiff; and that a receiver may be appointed by the court to take the custody and immediate possession thereof, during the pendency of this action, and that in the mean time the defendants and each of them be enjoined from disposing of, destroying, cutting, mutilating, injuring, concealing or removing out of the jurisdiction of this court the said paintings or any of them. FIELD & SLUYTER, Plaintiff's Attorneys. CITY AND COUNTY OF NEW-YORK, 88.: Benjamin F. Hunt, the plaintiff, being sworn, saith that the foregoing complaint is true of his own knowledge, except as to the matters therein stated on his information and belief, and that as to those matters he believes it to be true |