Ciechanowicz v. Bowery Savings Bank

WALSH, District Judge.

Plaintiff, a citizen of the U. S. S. R., claiming to be the named bene *368 ficiary of a Totten trust, has brought this action to recover the fund in the hands of the defendant bank. Defendant, a New York citizen, wishes to inter-plead with plaintiff another claimant, one Artemy Yachnik, also a New York citizen, and to assert defenses against both. It moves, under F.R.C.P. rule 13 (h), 28 U.S.C.A. to add the second claimant, as a party defendant, and under F.R.C.P. 22(1) to interplead him and the present plaintiff. The motion is granted.

Plaintiff opposes, claiming that John Hancock Mut. Life Ins. Co. v. Kraft, 2 Cir., 200 F.2d 952, 953 ; Kerrigan’s Estate v. Joseph E. Seagram & Sons, 3 Cir., 199 F.2d 694, 697 , which held that an action for interpleader might be brought under Rule 22 if there was diversity between stakeholder and claimant, are authority for the converse; that there may be an interpleader only if there is such diversity.

These cases are not authority for such a proposition where it is ancillary to an action properly founded upon diversity of citizenship, an action for interpleader may be brought in a federal court even though co-citizenship of parties plaintiff and defendant would have otherwise defeated federal jurisdiction. Sherman Nat. Bank v. Shubert Theatrical Co., D.C.S.D.N.Y., 238 F. 225, 228 , affirmed 2 Cir., 247 F. 256 ; Walmac Co. v. Isaacs, 1 Cir., 220 F.2d 108, 113 ; See also Marine Midland Trust Co. of New York v. Irving Trust Co., D.C.S.D.N.Y., 56 F.2d 385, 387 ; Republic of China v. American Express Co., 2 Cir., 195 F.2d 230, 234 ; Harris v. Travelers Ins. Co., D.C.E.D.Pa., 40 F.Supp. 154, 156 .

Further, defendant’s prayer for inter-pleader is a compulsory counterclaim. F.R.C.P. 13(a). It arises out of the same subject matter as plaintiff’s claim. See Republic of China v. American Express Co., supra., 195 F.2d at pages 233-234. Accordingly, it requires no independent basis of federal jurisdiction. Moore v. New York Cotton Exchange, 270 U.S. 593, 609-611 , 46 S.Ct. 367 , 70 L.Ed. 750 ; United States, to Use and for Benefit of Foster Wheeler Corporation v. American Surety Co. of New York, D.C.E.D.N.Y., 25 F.Supp. 700, 702 , affirmed, 2 Cir., 142 F.2d 726, 728 ; Aberdeen Hosiery Mills Co., Inc., v. Kaufman, D.C.S.D.N.Y., 113 F.Supp. 833, 834 . In such cases a new party may be added without requiring diversity between him and the counter-claimant. United Artists Corp. v. Masterpiece Productions, 2 Cir., 221 F.2d 213, 216-217 , held joinder of a co-citizen of defendant a proper incident to a common-law compulsory counterclaim to an action for copyright infringement. It cited with approval Carter Oil Co. v. Wood, D.C.E.D.Ill., 30 F.Supp. 875, 877 , which reached the same conclusion in a case, like the present one, where original! jurisdiction was based on diversity.

Plaintiff relies on Isaacs v. Walmac Co., D.C.R.I., 15 F.R.D. 341 , but this, holding was impliedly reversed by Walmac Co. v. Isaacs, supra, 220 F.2d 108, 113 .

Motion granted.