¶1The question involved is whether a third person substituted as defendant by order of interpleader can be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.
¶2Interpleader is an equitable proceeding, governed by equitable principles.
¶3The legal title to the fund is in the plaintiff, and presumptively, she is entitled to it. The substituted defendant comes in as a claimant, and in respect to such claim is nominally, though not technically, a plaintiff. He is a nonresident and irresponsible.
¶4Under such circumstances, the imposition of the condition might be deemed a valid exercise of power. But the difficulty is that there is no statute requiring such substituted defendant to give security for costs. See Republic v. Soto, 112 N. Y. 313; 16 Civ. Pro. Rep. 270; 20 N. Y. St. Repr. 749; Coates v. Morris, 1 Law Bul. 29.
¶5If the third party had applied for leave to come in, security might have been required as a condition, but that is not in this case. He is brought into the litigation in invitum, and cannot be hampered by conditions. Besides being an executor, he could not be said to be unreasonably defending a litigation to which his presence has become necessary to a complete determination of the controversy.
¶6The order appealed from must, therefore, be reversed, with costs.
¶7Newburger, J., concurs.
¶8Order reversed.
¶9Appeal from order made by Judge McGown.
¶10On the opinion filed this day upon deciding the appeal from the order of Judge Fitzsimons, the order appealed from will be reversed, without costs.