26 A.D. 206
Appellate Division of the Supreme Court of the State of New York
Decided July 1, 1898
Appellate Division of the Supreme Court of the State of New York · decided 1898-07-01
Appeal by the plaintiffs, Julius Bernstein and another, from an order’of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16tli day of December, 1897, granting the defendants’ motion to interplead one Aaron Wainess as a defendant in the action, and relieving the defendants from all liability upon paying to the plaintiffs the sum of $88, and interest from August 8, 1897.
Decided 1898-07-01
¶1I concur in the result. Too much weight is given to the affidavit. It seems to me that though one may have a good defense he need not insist upon it, but may waive it, and in so doing is not prejudiced in making any other application, or seeking any other relief to which he is entitled.
¶2Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.