The order here, although granting the motion, also directed that a payment directed to be made to the defendant be stayed pending an appeal by plaintiff from a certain judgment at law involving the same sum of money. The appeal relates only to that portion of the order which stays payment.
Whilst the funds in question remained impounded under an inter-pleader order in the action which made the cause equitable in nature, plaintiff proceeded at law for a personal judgment for a sum of money only. The defendant, therefore, moved that the plaintiff be compelled to elect. Plaintiff elected to proceed at law.
The case was tried at law by a judge and jury, not, however, as a case in any wise involving the question of ownership of the funds held under the interpleader order, but solely on plaintiff’s law complaint for moneys had and received. Plaintiff’s case after that trial was dismissed on the merits, and- judgment of dismissal entered.
Defendant then moved for the release to him of the funds still held under the order of interpleader, on the ground that, notwithstanding the judgment dismissing plaintiff’s complaint at law, the fact that plaintiff proceeded at law after the interpleader constituted a conclusive election of remedies, an abandonment of any claim on plaintiff’s part to the fund on deposit, and irrespective of the outcome of the law action, entitled the defendant to the funds. Defendant’s motion to pay over was, as stated above, granted by the Special Term.
The plaintiff made no motion for a stay, served no notice of any application for a stay, stated no facts of any nature to justify a stay. Her counsel, in his answering affidavits served in opposition to defendant’s motion to pay over, stated that plaintiff was appealing from the judgment of dismissal at law, and suggested that the decision on the motion to pay over, under the circumstances, be held in abeyance.
On granting defendant’s motion to pay over, the court of its own motion granted a stay of said payment pending the appeal from the law judgment of dismissal, not, however, from the order for payment now here, from which plaintiff took no appeal.
There is no authority for the relief granted. It stays one action commenced after another at the instance of the party plaintiff in both. It permits the invocation of equity for one purpose, the *88question of ownership, and then attempts to have it continued for a completely different purpose, as auxiliary to a repugnant and inconsistent law remedy, and all this without any notice to the defendant of the application for such relief.
The order so far as appealed from should be reversed, with ten dollars costs and disbursements.
Sherman, J., concurs.
Order so far as appealed from affirmed, with ten dollars costs and disbursements.