Jackson v. Knickerbocker Athletic Club — 49 A.D. 107

Majority

p. 107

James Jackson, Appellant, v. Knickerbocker Athletic Club, Respondent.

Headnote

Order of interpleader — not granted where the defendant admits an indebtedness less than that claimed by the plaintiff.

A defendant which admits its liability, either to the plaintiff or to a rival claimant, in an amount less than that claimed by the plaintiff in an action brought against it, will not be permitted to substitute the rival claimant as a defendant in the action, in its place and stead, upon payment of such sum into court.

Appeal by the plaintiff, James Jackson, 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 bn the 10th day of January, 1900, granting the defendant’s motion to substitute John J. McLean as defendant in its place and stead.

Henry Daily, Jr., for the appellant.

The order of interpleader in this case was improperly made. It appears that the plaintiff and one McLean claimed from the defendant moneys in its hands arising from the same source, and the defendant alleges that it is unable to determine to which of the claimants it can with safety pay those moneys. The plaintiff claims a certain amount, but the defendant admits indebtedness to one or the other of the claimants of a less amount. It has offered to deposit in court the lesser sum, and that being so it cannot be discharged from this action. A part of the plaintiff’s demand is still unprovided for, and the controversy between him and the defendant cannot be ended. There is still left a balance of the plaintiff’s claim. This order in effect compels the plaintiff to abandon that part of his claim.

The order must be reversed, with' ten dollars costs and disbursements, and the motion for an interpleader denied, with ten dollars costs.

Present — Van Beünt, P. J., Baeeett, Rumsey, Pattebson and McLaughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.