Majority
p. 655Axel Olsen, Respondent, v. Adam Moran, Appellant.
Headnote
Interpleader — Interpleader by substitution on order — Necessity nf identity of claim.Appeal from an order 'of the City Court of the city of New York, denying a motion for an order of interpleader under section 820 of the Code.
■ Patrick J. O’Beime, for appellant.
Harrison B. Weil, for respondent. e
Joyce & Drachman, for Harvey P. Miller, third party, sought to be interpleaded.
The plaintiff seeks to recover on an express employment and on a written agreement to pay. The action
p. 656
was for a broker’s commission on a sale of real estate. The defendant states in his moving affidavit that he had employed one Miller to make the sale; that a demand has been made against him for the sum of $550, and that the claim and demand made by the said Miller “ is the same claim anti demand made by the plaintiff.” In this latter statement he is clearly wrong. Each claim is based upon a distinct contract alleged to have been made between the claimant and the defendant.
This is not a proper case for an interpleader. McCreery v. Inge, 49 App. Div. 133 ; Cohen v. Cohen, 35 Misc. Rep. 206 .
The order should be affirmed, with ten dollars costs and disbursements.
Gildebsleeve and Davis, JJ., concur.
Order affirmed, with costs and disbursements.
Cases cited
- McCreery v. Inge 49 App. Div. 133 p. 656
- Cohen v. Cohen 35 Misc. Rep. 206 p. 656