SCOTT, J. The specifications for the building recited that the floor filling was to consist of brick arches. The statute (section 20, c. 415, p. 468, Laws 1897, as amended by chapter 192, p. 351, Laws 1899) requires that:

"All contractors and owners when constructing buildings in cities, where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors thereof are of fireproof material or brick work, shall complete the flooring or filling in as the building progresses, to not less than within three tiers of beams below that on which the iron work is being erected. If the plans and specifications of such building do not require filling in between the beams of floors with brick or fireproof material all contractors for carpenter work in the course of construction shall lay the underflooring thereof on each story as the building progresses to not less than two stories below the one to which such building has been erected."

The appellant contends that this divides buildings into two classes; one comprising such as have iron beams, and the other such as have wooden beams. This is not the distinction pointed out by the statute. There are two classes, but they are contradistinguished according to whether or not the filling between the beams is to be of brick or fireproof material, or not. The ironwork mentioned in the first clause of the section is not limited to iron beams, but to any ironwork necessary in the construction of the house. It was therefore the duty of the defendant Katzman, as owner, to see to it that the floors were filled in as required by the statute. In this duty he failed, and his failure was a direct cause of the accident by which the plaintiff was injured. It can readily be seen that the danger from falling bricks and other material must be ever present during the construction of a building, and the completion of the floors as the building goes up tends to lessen this danger. The ladder furnished for plaintiff's use was not in the opening left unfloored for stairways, but at some distance therefrom. If the floors had been laid as required by statute, the accident could not have occurred as it did.

Judgment affirmed, with costs. All concur.

ANKER v. SMITH.

(Supreme Court, Appellate Term. March 24, 1904.)

1. ORDER OF ARREST-MOTION TO VACATE-APPEAL.

Where defendant did not appeal from an order denying his motion to vacate an order of arrest, whether the affidavit on which the order was founded was sufficient could not be reviewed on appeal from the judgment.

2. CONVERSION-DELIVERY OF PROPERTY FOR SALE.

Where plaintiff delivered property to defendant, to be sold by him, plaintiff reserving the title until the property was sold, and, in an action against defendant for conversion, he did not allege as a defense that he had sold the property unaccounted for, it would be presumed that he did not sell it, but concealed it with a view to appropriating it to his own use. 3. SAME-REFUSAL TO DELIVER-DEMAND.

Where plaintiff delivered property to defendant for sale, reserving title to the same until sold, defendant's refusal to redeliver to plaintiff the goods unsold, on demand, amounted to conversion.

and 121 New York State Reporter

4. EVIDENCE-PRESUMPTIONS-FAILure of DefeNDANT TO TESTIFY.

Where, in an action for conversion, defendant was sworn, but did not testify, all presumptions must be taken most strongly against him.

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by William Anker against Hyman Smith. From a judgment of the Municipal Court of the city of New York in favor of plaintiff, defendant appeals. Affirmed.

See 85 N. Y. Supp. 1062.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Charles S. Rosenthal, for appellant.

Aaronstamm & Chorosh, for respondent.

SCOTT, J. The defendant does not appeal from the order denying his motion to vacate the order of arrest, and it is therefore unnecessary to consider whether the affidavit upon which the order was founded was sufficient. The plaintiff delivered his goods to defendant for sale. The title did not pass, and the plaintiff had a right to retake possession of the goods whenever he saw fit. Of course, as to any goods which the defendant actually sold, the plaintiff could not sue as for a conversion, and it would have been a complete answer to this action if the defendant had shown that he had sold them. This he did not undertake to do, and the presumption is that he did not sell them, but moved them out of his store and concealed them with a view to appropriating them to his own use. This he had no right to do, and his refusal to redeliver the unsold goods to plaintiff on demand amounted to a conversion of them. As the goods had disappeared, the proof of value offered by plaintiff was the best that, under the circumstances, could be furnished, and was sufficient. The plaintiff certainly made out a prima facie case. The defendant was sworn, but did not testify. All the presumptions must therefore be taken most strongly against him.

Judgment affirmed, with costs. All concur.

WELLS v. CORN EXCH. BANK.

(Supreme Court, Appellate Term. March 24, 1904.)

1. INTERPLEADER-CODE-RIGHTS OF PARTIES.

In an action instituted in the City Court against a bank to recover the amount of a deposit assigned to plaintiff, it appeared that plaintiff did not make demand for payment until 12 o'clock noon on the day of the assignment, when payment was refused because at 11:05 o'clock on the same day the bank was served with summons in an action in the Supreme Court against it by one H., claiming the money and making the depositor a party defendant to the action. Held, that the claim of H. presented a question entitling the bank to an order of interpleader against H., under Code Civ. Proc. § 820, providing that a defendant, against whom an action to recover on a contract is pending may, on a showing that another has

14. See Evidence, vol. 20, Cent. Dig. § 96.

made a demand against him for the same debt, apply to the court for an order to substitute that person in his place, and that the court may make such order.

2. SAME EQUITY JURISDICTION-RIGHTS OF APPLICANT.

Where a defendant is sued for the same debt by different parties plaintiff in two different courts, one of which has equity jurisdiction and the other has not, the application by the defendant for an order of interpleader to the court having no equity jurisdiction is properly denied, but the defendant will be remanded for the relief sought to the court which has such jurisdiction.

Appeal from City Court of New York, Special Term.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Bowers & Sands, for appellant.

Benno Loewy, for respondent.

BLANCHARD, J. This is an appeal from an order denying a motion to interplead one Lena Helene in an action brought in the City Court of the city of New York. It appears that one Fred J. Shalek had on deposit in the defendant bank the sum of $304.80, which he duly assigned to the plaintiff on the 30th day of January, 1904. When the plaintiff applied to the bank for the money, the bank refused to pay on the ground that an action in the Supreme Court had been. brought against it by the said Lena Helene to recover the said money, in which suit the said Shalek was also a party defendant. Thereupon the plaintiff brought this action to recover the identical money which was claimed by Helene in the action brought in the Supreme Court. At this juncture of affairs, two courses were open to the defendant bank: It might have paid the money to either claimant, in which event it would have been compelled to defend against the other, or it might have asked for an order of interpleader, which it did.

The learned court below, in denying the motion, states in its opinion that "the claim of Lena Helene presents no question calling for an interpleader." I cannot agree with this contention. The record shows that the summons in the Helene action was served on the defendant bank at 11 o'clock and 5 minutes on the morning of January 30, 1904, and that the plaintiff did not present the assignment to the bank and demand payment of the money until 12 o'clock noon of that day-nearly an hour after the summons in the Helene action had been served. Here were certainly two claimants to the same fund, and I think an order of interpleader proper, under section 820 of the Code of Civil Procedure. In considering this section of the Code, the Court of Appeals, in Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991, states the material allegations for interpleader as follows:

"(1) That two or more persons have preferred a claim against the plaintiff ; (2) that they claim the same thing; (3) that plaintiff has no beneficial interest in the thing claimed; (4) that he cannot determine, without hazard to himself, to which of the defendants the thing belongs."

All these requisites for interpleader are present in the case at bar. The contention that the assignment carried with it the ownership of the money may be sustained on the trial of the action, but it does not

87 N.Y.S.-31

and 121 New York State Reporter

defeat the right of interpleader, as the ownership of the money is the precise question at issue.

The remarks of the court in the case of German Exchange Bank v. Commissioners of Excise, 6 Abb. N. C. 394, 396, are in point:

"Merkle and Morrison have forbidden the bank to pay the moneys to Patterson and Morton, and the latter demand it. I do not deem it necessary to examine the validity of these respective claims, nor do I think that the plaintiff should be called upon to determine which of the contesting parties is entitled thereto. From the general nature of these adverse claims, the plaintiff should not be called upon to settle the controversy by paying one party, and exposing itself to an action from the other." Citing cases.

I am therefore of the opinion that, although this is a proper case for allowing an interpleader, the application for it should be made in the action brought by the judgment creditor, Helene, in the Supreme Court, as the granting of the motion for the interpleader in the City Court would have the effect of converting the plaintiff's action at law into one in equity (Clark v. Mosher, 107 N. Ÿ. 118, 14 N. E. 96, I Am. St. Rep. 798; Dinley v. McCullaugh, 92 Hun, 454, 36 N. Y. Supp. 1007), and would oust the City Court of jurisdiction (Lawrence v. Lawrence, 32 Misc. 503, 66 N. Y. Supp. 393).

To secure a proper disposition of the matter, the order appealed from should be affirmed, without costs, with a stay of further proceedings in the action, except such as may be necessary to carry into effect the determination of this court on this appeal, with leave to the defendant bank to make an application for an interpleader to the Supreme Court within 10 days after entry in the City Court of the judgment upon this appeal. In case the defendant bank fails within the time specified to apply to the Supreme Court for an order of interpleader, the stay will be vacated, and the order appealed from will be affirmed, with costs. All concur.

STEINHART et al. v. ENTEEN et al.

(Supreme Court, Appellate Term. March 24, 1904.)

1. ACTION ON NOTES-VERDICT-SUFFICIENCY.

Municipal Court Act (Laws 1901, p. 1560, c. 580) § 239, requires that in actions on notes the verdict must be general for the plaintiff for a specific sum. Section 326 (page 1583) provides that the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects. An action was on four notes. The same defense was interposed to all the notes, and the amount of interest was agreed on between counsel. The verdict was for plaintiff, but stated no amount, and defendant made no objection to the form of the verdict, and the court entered judgment for the amount of the notes and the agreed interest. Held, that the judgment would not be disturbed on appeal on the ground that the verdict was not in compliance with section 239, such objection having been waived.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Louis H. Steinhart and another against Louis Enteen and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Steuer & Hoffman, for appellants.

Herbert J. Hindes, for respondents.

SCOTT, J. This is an action upon four promissory notes. There was some conflict of evidence. The cause was tried at considerable length, and fully presented to the jury by the charge of the justice. The verdict was for plaintiffs. No question merits discussion upon this appeal, except the technical objection that the jury did not render a verdict for a specific sum. Section 239 of the Municipal Court act (c. 580, p. 1560, Laws 1902) requires that in cases like the present the verdict of the jury must be general for the plaintiff for a specific sum. The statement of the return is that "the jury, upon its return, renders a verdict for the plaintiffs." It is now contended by the appellants that this verdict did not conform to the requirements of section 239 of the act, and therefore furnished no basis upon which the justice could render judgment. Section 326 of the Municipal Court act (page 1583) provides that: "The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits." The pleadings and the record of the trial shows that, if the plaintiffs were entitled to recover at all, they were entitled to a judgment for the precise sum for which judgment was awarded to them. As has been said, the action was upon four promissory notes of $50 each, which were made on the same date, executed and indorsed by the same persons, and which came into plaintiffs' possession at the same time and under the same circumstances. The defenses interposed applied to all the notes alike. If good as to one note, they were good as to all; and, if insufficient as to one note, they were insufficient as to all. From the beginning of the case to the end no question was raised as to the amount the plaintiffs should recover if they recovered at all. No question was raised or evidence offered as to any one note which was not equally applicable to all. Even the amount of interest included in plaintiffs' claim was agreed to between counsel. Under these circumstances it is too late for the appellants to raise, for the first time, the objection that the jury did not render a verdict for a specific sum. The objection should have been taken at the time, when the justice would doubtless have given the jury proper instructions as to the form of their verdict. In doing so he would have been bound, if requested, to instruct them that, if they found for the plaintiffs, they must render a verdict for the amount of the four notes, with interest, being the precise sum included as damages in the judgment. Having failed to take the objection at the proper time, the appellants waived it. To reverse this judgment for this technical error, and subject the parties. to the expense of another trial, would not be rendering judgment according to the justice of the case.

Judgment affirmed, with costs. All concur.