#### Louis Beer, Appellant, *against*George H. Benner, Respondent.

(Decided November 17th, 1882.)

District Courts in the City of New York have, under the Code of Civil Procedure, the same power to make orders of interpleader as they formerly had under the Code of Procedure.

Appeal from a judgment of the District Court in the City of New York, for the Fourth Judicial District, entered upon the verdict of a jury.

The action was brought against one Peter Diehl, to re-recover the sum of $250 claimed by plaintiff as a balance of commissions due him as broker for the sale of certain lots of land. Upon motion of Diehl, an order was made by the Justice of the District Court that George H. Benner be interpleaded as defendant, it appearing that Benner claimed the money on the ground that he was originally employed by Diehl to find a purchaser for the lots, and that he employed Beer, the plaintiff, to do the work; and on trial before a jury, they found a verdict for Benner, upon which judgment in his favor was entered. From the judgment the plaintiff appealed to this court.

*S. M.*Roeder, for appellant.

*Lorenz*Zeller, for respondents.

J. F. Daly, J.

This ivas a proper case for interpleading Benner, who claimed the money for which the suit was brought, because he alleged himself to be the actual contractor with Diehl, and claimed that the plaintiff was his agent and not an independent contractor. Diehl therefore stood as a mere stakeholder of a fund which belonged to one of two claimants, and was properly relieved of the suit *230on paying the money into court and substituting Benner as defendant. The question is whether the District Courts had power at the date of the order of interpleader in the action (April 3d, 1882) to make such an order. Prior to the Code of Civil Procedure the District Courts had that power *(Dreyer*v. *Rauch,*10 Abb. Pr. N. S. 344). It was so held for the reason that section 48 of the District Court Act (L. 1857, c. 344) made the provisions of sections 55 to 64, both inclusive, of the Code of Procedure, applicable to the District Courts. Section 64 of the Code of Procedure, subdivision 15, declared that the provisions of that act (the Code) respecting parties to actions should apply to the District Courts. The provision for interpleader (section 122) rvas embraced in title 3 regulating parties to civil actions.

The Code of Procedure has been repealed, but section 48 of the act of 1857 has not been repealed. It reads as follows: “Section 48. The provisions of sections fifty-five to sixty-four, both inclusive, and of section sixty-eight, of the Code of Procedure, shall apply to these courts, except that the transcript of judgment specified in the latter section shall be furnished by the clerk of the court in Avhich the judgment was rendered, and also except that the execution may issue as well' out of the District Court in which the judgment Avas rendered as out of the Common Pleas.”

There are provisions in the new Code relating to transcripts of and executions upon judgments of these courts Avhich supersede so much of - section 48, above quoted, as regulates those matters (§ 3220). And there are other provisions of the new Code which partially supersede the regulations found in sections 55 to 64 and section 68 of the Code of Procedure. But there is no provision in the new Code as to interpleader in these courts, and so much therefore of the former practice is not superseded by any provision in the new practice.

We must assume that the legislature, in not repealing section 48 (although it included a direct reference to certain provisions of the old Code, and made the practice *231thereunder the practice, of the District Courts), had a purpose in view, and this purpose undoubtedly was to preserve to suitors and litigants in the District Courts all the benefits which the section 48 was originally intended to confer. Among these none is so important and beneficial as the provision giving to defendant in certain cases the right to interplead the real contestant.

We shall, I think, be giving the natural and ordinary effect to the legislative intention as expressed in its acts, and its omission to act, if we hold:

1. Thai by section 48 of the District Court act, so much of the practice of the Code of Procedure as may be embraced within sections 55 to 64 inclusive and section 68 was made the practice of the District Courts as fully and as completely as if those provisions were incorporated in full in the act in question (L. 1857, c. 344).

2. That the omission to repeal section 48, when other portions of the act were expressly repealed (see repealing act, chapter 245, Laws of 1880), is an expression of legislative will that such portion of the practice under that section as was not superseded by the new Code should be retained.

3. That this intention is confirmed by section 4 of the new Code, which, after an enumeration of all the courts in section 3, declares that “ each of those courts shall continue to exercise the jurisdiction and powers now vested in it by law according to the course and practice of the court, except as otherwise prescribed in this act,” and by section 3214 of the new Code, which provides that “except as otherwise specially prescribed in the title this act does not affect an) statutory provision remaining unrepealed, after this chapter takes effect, relating to the -jurisdiction and powers of either of those courts.” Section 48 of the act of 1857 is an unrepealed statutory provision relating to the powers of those courts.

There are no exceptions of importance in the case.

The attempt to contradict defendant by introducing his letter heading, was a contradiction upon a matter drawn *232out iii cross-examination, and not involved in the issues, viz., as to whether he represented himself to be a member of a law firm.

The motion to strike out an answer as irresponsive was properly denied because part of the answer was responsive.

The request to charge that the burden of proof lay on the defendant was properly denied because the plaintiff alleged in his complaint employment by Diehl, and the finding of a purchaser, which was denied by Benner’s answer, and he was bound to prove it.

The request to charge should have been limited to what was strictly affirmative in Benner’s defense.

Judgment should be affirmed.

Van Brttnt, J., concurred.

Judgment affirmed.