TMs is an appeal from a judgment of the Municipal Court.
It appears by the record in this action that the plaintiff originally sued one John F. Harriott, as property clerk of the police department of the city of Hew York, to recover the sum of $170 deposited by his assignor, one Max Frank, while under arrest. Upon due application and on the consent of the attorneys for the respective parties, Harriott was permitted to deposit the money in court and Isaac Lieberman was interpleaded as defendant. Upon the trial judgment was rendered in favor of the plaintiff awarding to him the fund.
This was error as the court was without jurisdiction to try the cause.
By the order of interpleader and the proceedings thereupon taken, equitable issues were created, and the action, originally legal in its nature, ceased to be such and thenceforth became an action in equity. Windecker v. Mutual Life Ins. Co., 12 App. Div. 73, 80; Clark v. Mosher, 107 N. Y. 118; Dinley v. McCullagh, 92 Hun, 454.
In the case of McConologue v. McCaffrey, 29 Misc. Rep. 139, we reached the conclusion that the Municipal Court of the city of Hew York came within the constitutional provision denying equity jurisdiction to a new, local, inferior court of the Legislature’s creation. We based our decision primarily on the case of Matter of Schultes, 33 App. Div. 524, which held that the Municipal Court was a new, local, inferior court. So long as that decision remains controlling, we must, as in other jurisdictional questions determined by us, deny to the Municipal Court power to entertain the action.
Leave to appeal to the Appellate Division will be granted. Judgment reversed, with costs to appellant.
Freedman, P. J., and MaoLean, J., concur.
Judgment reversed, with costs.