Rothschild v. Clawans , 108 N.Y.S.2d 800 ( 1951 )

Per Curiam.

Plaintiffs have appealed from an order denying their application under subdivision 3 of section 287-d of the Civil Practice Act for an order permitting them to retain specific personal property to the credit of the action and to be discharged from liability to any of the parties for its retention.

In denying the application Special Term treated it as one addressed to the discretion of the court although the section gives an applicant who meets its requirements an absolute right to one of the forms of relief specified. Subdivision 3 of section 287-d provides that upon the entry of an order pursuant to section 287-a, permitting the institution of an action to determine adverse claims to specific personal property, or at any time thereafter, the court upon the application of the person holding the property “ must order ” that the property be delivered to the court or to a person designated by the court or that it be retained by the holder for disposition in accordance with the final judgment to be entered in the action. The order may impose such terms and conditions as may be justly warranted by the existing state of facts.

It is undisputed that plaintiffs instituted this action pursuant to an order properly obtained under the provisions of section 287-a; consequently, their application for the relief sought should have been granted.

The order appealed from, therefore, should be reversed, with $20 costs and disbursements to appellants and their motion granted. Settle order.