This is an appeal from an order denying a motion made by the defendant to interplead one Charles Mahro as the party defendant to the action and for other relief.
*276The motion was denied on the ground and for the reason that the petition of the defendant did not state the grounds' of the alleged claim by Charles Mahro and fails to show that the said Charles Mahro makes such claim to the fund that he should be made a party defendant, or for the granting of the other relief prayed for.
The motion was made under section 115,.chapter 689,- Laws of 1892, and it is therein provided, that “ In all actions against any savings bank to recover for moneys deposited therewith, if there be any person or persons not parties to the action who claim' the same fund, the court in which the action is pending may, on the petition, etc., make an order amending the .proceedings in the action by making such claimants parties defendant thereto.”
The .petition on which- the defendant moved, as far as material, is as follows: “ That one Charles Mahro, who is hot a party to this ■action, has. made a claim against your petitioners for the money deposited by the said Amelia Mahro, which is the .same fund which this action is brought to recover, and has claimed and claims that the said money and fund belong to, and are payable unto Mm, and has forbidden your petitioners to pay the same to any'Other person; and the said plaintiff in this action also claims the said money and fund as her own; that the said claims are each-made without any collusion with your petitioners. That your petitioners • in making -this application are not acting in collusion with or at the request of either of the said claimants of the said money; have not been indemnified by either of them; are indifferent between them in respect to the said money; have no beneficial interest in the said money, and have no interest in the question to whom the same belongs, except to pay the same to the person to whom the same belongs; that-they are ready and willing to pay the said money now standing to the credit of the said account on production and surrender of the said pass-book, and upon the said, Charles Mahro being made a party defendant to this action, to wMchever of the said claimants this court shall decide "the same to belong, and. to keep the same on deposit to the credit of this action until final judgment in this action so amended as provided by the said section 115 of the said act; but by reason of such conflicting claims to the said money your petitioners do not know and cannot" determine without hazard to themselves to which of the said claimants the said money belongs, or to which of them they can safely pay the same; and they cannot safely pay the said *277money to either of the said claimants until the said Charles Mahro shall have been made a party to this action and this court shall decide to which of the said claimants the said money belongs.”
It is clear that the defendant asks to substitute another party as defendant on the mere allegation that he claims the fund; the petition does not state any facts showing the. nature of the claim asserted' by Charles Mahro, or that the claim is not frivolous, and without such facts it is impossible to say whether such claim creates any reasonable doubt as to which party is entitled to the fund or that the claim has any foundation in law. In Nassau Bank v. Yandes, 44 Hun, 59 it is held: “ The rule now is that a reasonable doubt must exist in. order to justify the bringing of an action of interpleader.” And this action is cited with approval in Feldman v. Grand Lodge, 19 N. Y. Supp. 74, where O’Brien, J., says: “ The rule is now settled that there must be some reasonable foundation for a claim asserted to entitle a defendant, while admitting its liability, to have such claimants substituted by order of inter-pleader.”
The case of Williams v. Insurance Co., 8 N. Y. St. Repr. 567, is also an authority in point. Judge Learned, delivering the opinion, said: “ There must always be a real doubt in the mind of the defendant, based upon facts, as to who has the just claim before interpleader will be permitted.” See, also, Mars v. Albany Savings Bank, 19 N. Y. Supp. 791, and the same case again reported upon a subsequent appeal, 23 id. 658.
It is suggested in the brief of the defendants’ counsel that if the petition is defective in not setting forth the grounds of the alleged claim of Charles Mahro, yet such grounds do appear in the affidavit of the plaintiff,- and consequently were before the court on- the motion.
Plaintiff states in her affidavit “ That her father has no interest, whatever in the' fund and he never made any such claim to her knowledge until a short time before the commencement of this action,, when, she was informed, he made such claim to the officers of the bank. That on December 7, 1895, she attempted to draw some money from the said account, the defendant refused to permit her to do so, and the officers 6f whom she made demand told her that the bank-book did not belong to her, but had been stolen. Plaintiff denied that such was the case, ánd later on the same day she was permitted to draw $75. On December 12, 1895, she again went to - the bank to draw some money but was *278refused permission to do so, the hank’s officers giving as an excuse ■ that the hook had been stolen and did not belong to her. That the pass-book was issued in her name and belongs to her and has always been in her possession and no other person, has any just or reasonable claim to it or- to the money recorded therein.”
From these statements it appears that an interest in the fund is claimed by Charles Mahro, the father of the plaintiff, but for how much thereof, or upon what grounds, does not appear;, also, that upon two different occasions when the plaintiff-attempted to draw money from defendant upon her account, some 'officer of the bank stated that the bank-book had been stolen and did not belong to her.
From whom it is claimed the hook was stolen, or at what time, does not appear.
The order appealed from should be affirmed, with' costs.
Fitzsimohs and Coulait, JJ., concur.
Order affirmed, with costs.