Smith v. Smith

Fboessel, J.

(dissenting). I dissent and vote to reverse upon the ground that the trial court erred in charging that the burden of proof rested wholly upon the plaintiff and in refusing to charge, as requested, that the defendant had a like burden before he could recover. Before either adversary party in the case of interpleader can recover, the burden of proof rests upon such party to establish his claim by a fair preponderance of the evidence. To put it otherwise: each claimant must carry his own burden and establish his own title; he may not rely on the weakness of the other’s claim (Clark v. Mosher, 107 N. Y. 118, 122; Willat Film Corp v. Central Union Trust Co., 221 App. Div. 180, 183; Savage v. McCauley, 301 Mass. 162; County of Union v. *668Hopkins, 95 N. J. Eq. 444; Wetzel v. Collin, 170 Md. 383; Prudential Ins. Co. of America v. Cahill, 321 Ill. App. 45; Neiderlehner v. Weatherly, 73 Ohio App. 33; see, also, Bata v. Bata, 306 N. Y. 96, 101, 109).

Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur in Per Curiam opinion; Fboessel, J., dissents in an opinion; Van Vooehis, J., taking no part.

Judgment affirmed.