Adriance v. Sanders.

Petition by defendant for discovery, inspection and copy of documents.

This was an action of ejectment brought by Charles W. Willis in the name of Margaret E. Adriance, his grantor.

After issue joined, the defendant moved that said Adriance be compelled to produce certain deeds, and to submit them to the inspection of the defendant, and that defendant be allowed to make copies thereof.

The application was opposed on the ground that, in such an action, the real plaintiff was the grantee, and that the grantor not being a party to the action, could not be compelled to make discovery.

Henry P. Townsend, for petition.

Wm. Settle, opposed.

TRUAX, J.— The party prosecuting a civil action is styled the plaintiff (§ 3338, Code of Civil Procedure). This action is maintained (or prosecuted) by the grantee in the name of the grantor, as provided in section 1501 of the Code of Civil Procedure. Therefore, the grantee, and not the grantor, is the real plaintiff.

The court may compel a party to the action to produce any books, etc., in his possession, but has no power to compel a person not a party to produce such books, etc., under section 803 of the Code of Civil Procedure. (See, also, Hale v. Rogers, 22 Hun, 19; Elmore v. Hyde, 2 Abb. N. C. 129, 133; Strong v. Strong, 3 Robt. 675.)

The motion is denied, with $10 costs.

United States v. Rose.

UNITED STATES v. ROSE.

U. S. DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, EQUITY TERM; JANUARY, 1883.

§§ 1897, 1962, 1964.

Actions by the United States to recover penalties.— Such actions correspond with those brought by the people of the State. When complaint is not

served with the summons, summons must be endorsed as

required by 1897 of Code of Civil Procedure.—
Summons not so endorsed is defective, and
cannot be amended.

Actions brought by "The United States" entirely correspond with those brought by the State in the name of "The People," etc.; and Congress baving adopted the forms and modes of proceeding" of the several States, an action for a penalty brought by the "United States" in a federal court in the State of New York must be in the form and mode prescribed by the State for a similar action brought by "The People," etc.

Accordingly, where, in an action brought by the United States to recover a penalty for a violation of a provision of the U. S. R. S., the complaint was not delivered to the defendant at the time when service of the summons was made,-Held, that the summons should have been endorsed with a reference to the statute and the penalty, as required by section 1897 of the Code of Civil Procedure.

In such an action, a summons, so served, which has not this endorsement, is defective in a material part, and is not amendable. The matter required to be endorsed is a substantial and material part of the writ because designed to give the defendant immediate notice of the nature of the action.

Motion by defendant to set aside service of the

summons.

This action was brought by the United States, under § 4504, U. S. R. S., to recover from the defendant a penalty of $500, for having performed the duties pertaining to the office of a shipping-commissioner when he was not such a commissioner. The præcipe merely directed the issuing of a summons under § 4504 of the

United States v. Rose.

U. S. R. S., and the summons had no endorsement in reference to the statute under which the action was brought, nor to the section giving the penalty, as described in § 1897 of the Code of Civil Procedure. A copy of the complaint was not delivered to the defendant at the time when service of the summons was made.

Goodrich, Deady & Platt, for motion.

W. C. Wallace, Asst. U. S. District-Attorney, opposed.

BROWN, J.-Actions for penalties brought in the name of "The United States" correspond entirely with those brought by the State in the name of "The People," etc. Each represents the sovereignty which is plaintiff. Hence, when Congress adopts (§ 914 U. S. R. S.) the "forms and modes of proceeding" of the several States, an action by "The United States," brought in the State of New York, must be in the form and mode prescribed in this State for similar actions by "The People," etc.; and, therefore, the reference to the statute and penalty was required to be endorsed on the summons in this action, as prescribed by sections 1897, 1964 and 1962 of the New York Code of Civil Procedure.

The matter required to be endorsed is a substantial and material part of the writ, because designed to give immediate notice to the defendant of the nature of the action. The præcipe does not supply this notice, and was not a compliance with the statute. The summons having no endorsement was defective in a material part; and, hence, it is not amendable, and the service of the summons must be set aside (Brown v. Pond, 5 Fed. Rep. 31; Peaslee v. Haberstro, 15 Blatchf. 472; Dwight v. Merritt, 18 Id. 305).

Motion granted.

Beer v. Benner.

BEER, APPELLANT, v. BENNER, RESPONDENT.

N. Y. COMMON PLEAS, GENERAL TERM; OCTOBER, 1882.

SS 3, 4, 3214. § 48, Chap. 344, Laws of 1857.

Practice in district courts in the city of New York.

How far unaffected by
Code of Civil Procedure.- $ 48, Chap. 344, Laws of 1857. —
District courts have power to grant interpleader.

Section 48 of Chap. 344 of the Laws of 1857, making §§ 55-64, both inclusive, and 68 of the Code of Procedure applicable to district courts in the city of New York, being unrepealed, the practice under said 48, is, by reason of the provisions of § 3, 4, 3:14 of the Code of Civil Procedure, still in force, so far as it has not been superseded by the Code of Civil Procedure.

Subd. 15 of 564 of the Code of Procedure having made the provisions of that Code respecting parties to actions applicable to district courts, and 122 thereof containing provisions for interpleader and being included in the title regulating the parties to actions, and the Code of Civil Procedure containing no provisions for interpleader in such courts, the former practice, in this particular, has not been superseded; and such courts have the power to grant an order of interpleader. (Decided November 17, 1882.)

Appeal by plaintiff from an order of interpleader made by a justice of a district court in the city of New York.

This action was originally brought against one Diehl to recover the sum of $250, alleged to be due the plaintiff, as a commission for having effected the sale of certain real property. One Benner claimed that such commission was payable to him, on the ground that, in the first instance, he had been employed by said Diehl to effect the sale, and that the plaintiff had no independent contract with Diehl, and had merely been his, Benner's, agent.

On application of Diehl, an order of interpleader was made, allowing the amount to be paid into court, and substituting Benner as the defendant in the action.

Judgment in the action was in favor of the defendant.

Beer v. Benner.

S. M. Roeder, for appellant.

Lorenz Zeller, for respondent.

By the Court.-J. F. DALY, J.-This was a proper case for interpleading. Benner claimed the money for which the suit was brought, because he alleged himself to be the actual contractor with Diehl, and claimed that the plaintiff was his agent and not an independent contractor. Diehl, therefore, stood as a mere stakeholder of a fund which belonged to one of two claimants, and was properly relieved of the suit on paying the money into court and substituting Benner as defendant. The question is, whether the district courts had power, at the date of the order of interpleader in the action (April 3, 1882), to make such an order. Prior to the Code of Civil Procedure, the district courts had that power (Dreyer v. Rauch, 10 Abb., . S., 343). It was so held for the reason that section 48 of the district court act (Laws of 1857, chap. 344) made the provisions of sections 55 to 64, both inclusive, of the Code of Procedure applicable to the district courts. Section 64 of the Code of Procedure, subdivision 15, declared, that the provisions of that act (the Code), respecting parties to actions, should apply to the district courts. The provision for interpleader (sec. 122) was embraced in title 3, regulating parties to civil actions.

The Code of Procedure has been repealed, but section. 48 of the act of 1857 has not been repealed. It reads as follows: "Section 48. The provisions of sections fiftyfive to sixty-four, both inclusive, and of section sixtyeight of the Code of Procedure, shall apply to these courts, except that the transcript of judgment specified in the latter section, shall be furnished by the clerk of the court in which the judgment was rendered, and also except that the execution may issue as well out of the