SATKOFSKY et al. v. JARMULOWSKY. (Supreme Court, Appellate Term. January 17, 1906.) COURTS-MUNICIPAL COurts-JurisDICTION. The granting of an order of interpleader does not necessarily involve the exercise of equity jurisdiction, so as to invalidate Municipal Court Act, § 187 (Laws 1902, p. 1546, c. 580), giving the municipal court authority to make such an order. Appeal from City Court of New York. Action by Max Šatkofsky and another against Sender Jarmulowsky. From an order denying defendant's motion for a new trial, he appeals. Reversed. See 95 N. Y. Supp. 555. Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ. Morris Clark (David McClure, of counsel), for appellant. SCOTT, P. J. The only question necessary to be considered upon this appeal is as to the validity of section 187 of the municipal court act (Laws 1902, p. 1546, c. 580), giving the Municipal Court authority to make an order of interpleader. The argument in favor of the unconstitutionality of that section is ingenious, but not convincing. It rests entirely upon the assumption that the granting of an order of interpleader necessarily involves the exercise of equity jurisdiction. While there are phrases in certain opinions, which, taken by themselves, seem to support this view, we do not consider that the authorities go to the whole extent claimed for them. The true rule appears to be that an interpleader, by order, does not turn the action into a suit in equity, but it is a statutory remedy designed for use in common-law courts and actions, to the application of which certain rules derived from the practice of the equity courts have been adapted. McElroy v. Baer, 9 Civ. Proc. R. 133. Order reversed, and new trial granted, with costs to appellant to abide the event. All concur. FRIEDMAN v. YAMNER. (Supreme Court, Appellate Term. January 17, 1906.) EVIDENCE-CONCLUSIONS. The testimony of witness giving in detail a conversation showing a monthly letting cannot be overcome by his conclusion, in another part of his testimony, which is merely the construction he put on the conversation, that there was a verbal lease for a year. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Cilly Friedman against Sussman Yamner. From a judgment for plaintiff, defendant appeals. Reversed. and 131 New York State Reporter Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ. Max Brown, for appellant. Emanuel I. Silberstein, for respondent. SCOTT, P. J. I can find no evidence that a lease was made for a year. The evidence of the witness Harry Friedman, where he gives in detail the conversation with defendant, shows a monthly letting. This cannot be changed to a lease for a year by the witness' conclusion in another part of his testimony that the defendant took a verbal lease for a year. This is merely the construction he puts on the conversation, which he detailed previously, and which shows a monthly letting. The complaint should have been dismissed, and the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. MCCORMICK v. SHEA et al. (Supreme Court, Appellate Term. January 17, 1906.) JUDGMENT-OPENING DEFAULT-COSTS. Where defendant should have had a reasonable adjournment, his motion to open default should be granted without terms. [Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 326.] Appeal from City Court of New York, Trial Term. Action by John McCormick against Annie A. Shea, impleaded with another. From an order opening the default of said defendant on payment of costs, she appeals. Modified. See 94 N. Y. Supp. 485. Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ. Franklin Bien, for appellant. David Bernstein, for respondent. PER CURIAM. Under the circumstances the defendant should have had a reasonable adjournment, and the motion to open the default should have been granted without the imposition of terms. The order appealed from will be modified by striking out so much thereof as imposed costs upon defendant, and as so modified will be affirmed, with $10 costs and disbursements to appellant. FIZBURG v. RAMSEY. (Supreme Court, Appellate Term. January 17, 1906.) DISMISSAL AND NONSUIT-RIGHT TO DISCONTINUE-INTERPOSITION OF COUNTER CLAIM. Where a counterclaim is interposed, plaintiff has no absolute right to discontinue upon payment of costs, but he must show facts such as to justify the court in permitting him to discontinue, and whether such permission shall be granted over defendant's objection rests within the discretion of the court. [Ed. Note. For cases in point, see vol. 17, Cent. Dig. Dismissal and Nonsuit, § 34.] Appeal from City Court of New York. Action by Philip Fizburg against Charles Ramsey. From an order denying a motion for leave to discontinue, plaintiff appeals. Affirmed. Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ. Henry Fluegelman, for appellant. BLANCHARD, J. This is an appeal from an order of the City Court denying a motion by the plaintiff for leave to discontinue. The cause of action alleged in the complaint is substantially the same as that set up in the answer, each party seeking to recover from the other the sum of $1,000 upon two similar promissory notes given by each to the other, to secure the performance of a contract made between them. The learned court below held, and rightly, that no sufficient reason was given in the moving papers for granting the motion. The rule laid down by the Court of Appeals in the matter of Lasak, 131 N. Y. 624, 627, 30 N. E. 112, is decisive. It states: "In ordinary actions it is not always the absolute right of a plaintiff to discontinue his action. In all cases where the defendant becomes an actor and is interested in the continuance and trial of the action, as when he sets up a counterclaim or sets up a claim to property, which is in litigation, and asks in his answer for affirmative relief in reference thereto, he may resist the discontinuance of the action, and then it rests in the discretion of the court whether or not the plaintiff shall be permitted to discontinue it." The defendant is equally an actor with the plaintiff in the prosecution of the action, and the burden is upon the plaintiff to present the facts, which would justify the court in granting the relief he seeks. He presents no facts, whatever, but "believes that it will be for the best interests of the parties hereto that this action be discontinued," and, in making the motion, he appears to have proceeded upon the erroneous theory that he had an absolute right to discontinue. The plaintiff is no more entitled to have this action discontinued upon payment of costs than would the defendant. The defendant has been put to trouble and expense in defending the action and in asserting his counterclaim, and he is entitled to have his rights determined therein. The order appealed from is affirmed, with costs and disbursements. All concur. and 131 New York State Reporter TISCHLER v. SHURMAN. (Supreme Court, Appellate Term. January 17, 1906.) 1. BILLS AND NOTES-ASSIGNMENT-BONA FIDES. The holder of a check given without consideration must show the cir cumstances under which it came into his possession, and that he acted in good faith. [Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 1676.] 2. SAME EVIDENCE. Evidence that the holder of a check paid value therefor is not conclusive of the fact of bona fides. 3. SAME-SUFFICIENT. Evidence in an action on a check, for which there was no consideration, held insufficient to show the bona fides of the transaction by which plaintiff came into possession of it. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Samuel Tischler against Clifford Shurman. From a judgment for plaintiff, defendant appeals. Reversed. Argued before SCOTT, P. J., and BLANCHARD and DOWLING, JJ. Maxwell C. Katz, for appellant. Louis Jersawitz, for respondent. SCOTT, P. J. There is no doubt that the check sued upon was wholly without consideration, and that the original holder could not have maintained an action thereon. Under such circumstances it is incumbent upon the holder to show the circumstances under which the paper came into his possession and that he acted in good faith. Evidence that he paid value for the check, although entitled to great weight, is not conclusive of the fact of bona fides. Canajoharie Nat'l Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676. In the present case there are many suspicious circumstances tending to show that the transfer of the check to plaintiff was made merely for the purpose of avoiding the defense of lack of consideration. The original payee of the note was available to plaintiff as a witness, and, indeed, was in court on the day of the trial. He was a client of the plaintiff's attorney. He was named as defendant, but was never served, and the attorney who acts for the plaintiff in this action has never acted for him in any other matter. Added to this is the fact that the plaintiff cannot recollect on what day of the week he cashed the check, or on what hour of the day. The failure of the plaintiff to call Wresensky, the original payee, leaves the bona fides of the transaction unsustained, and forces the conclusion that the plaintiff has not satisfactorily explained the circumstances under which he received the check. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur. (110 App. Div. 636.) SALEN et al. v. BANK OF STATE OF NEW YORK. (Supreme Court, Appellate Division, First Department. January 19, 1906.) 1. BILLS AND NOTES-CHECKS-PRIMA FACIE OWNERSHIP. Checks made payable to one prima facie belong to him, and can only be transferred by him or his agent. [Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 434.] 2. SAME-BONA FIDE PURCHASER-KNOWLEDGE OF UNAUTHORIZED INDORSE MENT. Where an agent, authorized to indorse the checks of customers payable to the principal and deposit them in a designated bank for collection, indorsed checks in his principal's name, and deposited them with a broker as margins in his speculative stock account, the broker was liable to the principal for the amount of the checks, because he had notice of the wrongful act of the agent. [Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 842, 844.] 3. SAME-FORGED INDORSEMENT. An agent, authorized to indorse checks of customers payable to the principal and deposit them in designated banks for collection, indorsed checks and deposited them with a broker as margins on a personal speculative stock account. The broker deposited the checks in a bank, which received them and paid the proceeds thereof to him in good faith. Held, that as the indorsements made by the agent were not forgeries, within Negotiable Instruments Law, Laws 1897, c. 612, § 42, providing that a forged signature is inoperative, and no right to the instrument can be acquired thereby, the bank was not liable to the principal as for a conversion of the checks. Appeal from Trial Term, New York County. Action by Paul Salen and another, composing the firm of Salen & Schroeder, against the Bank of the State of New York. From an order denying a motion to set aside a verdict for plaintiff, and for a new trial on exceptions directed to be made in the first instance in the Appellate Division, defendant appeals. Reversed. Argued before O'BRIEN, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and CLARKE, JJ. Winthrop & Stimson (Lawrence E. Sexton, of counsel), for appel lant. Opdyke, Ladd & Bristow (Geo. A. Strong and Wm. S. Opdyke, of counsel), for respondents. CLARKE, J. This action was brought to recover about $6,000 damages for the conversion by the defendant of a number of checks, and of the proceeds thereof, belonging to plaintiffs. Plaintiffs reside and do business in Paris, France, as general commission merchants. In 1901, and for some time prior thereto, they had an agency in the city of New York, and one Martin Cassidy was their agent in charge, receiving and forwarding orders from their customers, and making sales. and collections under written agreements defining his authority. The agreement contained this clause: "(6) The bank account of the said agency shall be kept with the Fifth Avenue Bank, unless otherwise arranged by said firm, and in the name of |