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Trembley v. Marshall

118 A.D. 839 Court First Department, Decision date 1907-04-05 English

Delivered by Scott,. J.:

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p. 839
Charles W. Trembley, Respondent, v. Charles C. Marshall, Appellant.
First Department,
April 5, 1907.

Headnote

Practice — when rival claimants to fund may be interpleaded.
When two brokers each claim a right to commissions, and there is no pretense that the defendant is liable to both, he may, upon paying the amount into court, interplead the claimants to litigate the issues between themselves.
Appeal by the defendant, Charles C. Marshall, 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 28tli day of January, 1907, denying the defendant’s motion to have another person interpleaded and substituted as defendant.
William B. Horriblower, for the appellant.
William JET. Osborne, for the respondent. -

We have here presented the not infrequent case of a single sale of real property, with two brokers each claiming to have been the sole efficient cause of the sale, and, therefore, entitled to the commission. There is no pretense or suggestion that defendant has rendered himself liable to pay double commissions, and he, conceding his liability to one or the other of the claimants, but unable to determine between them, and unwilling to do so at his own risk, asks to interplead them, paying the sum claimed into court, and leaving the rival claimants to litigate over it between themselves. There is good reason and ample authority for granting his motion. (Rasines v. Ives, 85 App. Div. 483 ; Dreyer v. Rauch, 3 Daly, 434 ; Shipman v. Scott, 12 Civ. Proc. Rep. 109 ; Bickart v. Hoffmann, 19 N. Y. Supp. 472 .)

We find no foundation in the papers for the claim that, in any legal sense, the appellant has disputed the plaintiff’s claim. At the most he has expressed only an opinion that it is not well founded.

p. 840
This is not sufficient to defeat his motion. The order should he reversed, with ten dollars costs and disbursements,'and the motion granted, with ten dollars costs, upon the payment into court by defendant of the amount claimed.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon payment into court by defendant of amount claimed.

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