Smith v. Smith

Per Curiam.

The question whether there may be a dual burden of proof in the usual interpleader case, so that neither party may recover unless he sustains the burden of establishing his claim, is not presented by the present case — which was tried before a jury by consent of both parties and was otherwise treated as an action at law in replevin. In any event, in the present case there are only two possible owners of the stock in suit, either plaintiff or defendant. The issue as to which of the two parties owns the stock turns here upon identical questions both of law and fact. If one of the two claimants is not the owner, it must follow that the other claimant is the owner.

Accordingly, since the negation of one claim in our present case would automatically establish the other (see Russ v. Russ, 263 N. Y. 625, 626), no error was presented by reason of the trial court’s failure to charge the jury that there was a dual burden of proof.

The judgment should be affirmed, with costs.