Hyperlawhypertext legal database Edison Illuminating Co. v. Horace E. Frick Co. 131 N.Y.S. 125

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Edison Illuminating Co. v. Horace E. Frick Co.

131 N.Y.S. 125 Court N.Y. App. Div. Decision date 1911-10-06 English

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p. 125
EDISON ILLUMINATING CO. OF BROOKLYN v. HORACE E. FRICK CO. et al.
(Supreme Court, Appellate Division, Second Department.
October 6, 1911.)

Headnote

Interpleader (§ 19*)—Proceedings—Parties.
Codé Civ. Proc. § 820a, provides that when a sum is due on contract, and an amount exceeding $50 is claimed by adverse claimants, the debtor may bring suit of interpleader, and be permitted to pay the amount into court, and be discharged from further liability. Held that, after plaintiff debtor has been discharged by an interlocutory judgment for him in such proceedings, a judgment creditor whose execution has been returned unsatisfied, and who claims an interest in the fund, may, on his application, be made a party defendant to have the fund applied in satisfaction of his judgment; section 452 providing that, where one not a party has an interest in the subject thereof and applies to be made a party, the court must direct him to be brought in by proper amendment.
[Ed. Note.—For other cases, see Interpleader, Cent. Dig. § 41; Dec. Dig. § 19.[1] ]
Appeal from Special Term.
Proceedings by the Edison Illuminating Company of Brooklyn against the Horace E. Frick Company and others, in which John V. Lindberg applies to be made a party defendant. From an order granting the application, one of the defendants appeals. Affirmed.
p. 126
Blackmar, J., delivered the following opinion at Special «Term:
The interlocutory judgment or order, under section 820a of the Code, having been entered, the plaintiff is practically discharged from the action. The contest is now solely between the different defendants. Now comes another person, the applicant, who claims an interest in the fund, and I can see no theoretical or practical objection to giving him an opportunity to assert > it. A judgment creditor, whose execution has been returned unsatisfied, has an interest in property of the judgment debtor which warrants him in seeking the aid of a court of equity to have it applied to the satisfaction of his judgment. As incidental to the relief, fraudulent conveyances may be swept aside. The applicant, therefore, has such an interest as is contemplated by section 452 of the Code. In addition to this, the third party order gives him a specific equitable lien.
The applicant may take an order making him a party defendant and amending all process and pleadings accordingly, without prejudice and subject to all proceedings already had in the action, with leave to set up his claim to the fund by serving on the other defendants, within 10 days, such pleading as he may be advised, which shall be considered as controverted by the other defendants by traverse or avoidance, as the case may require, without formal pleading. No costs.
Argued before JENKS, P. J., and THOMAS, CARR,' WOODWARD, and RICH, JJt ■
Bond & Babson, for appellant.
Low, Miller & Low, for respondent Lindberg.

Order affirmed, with $10 costs and disbursements, on the opinion of Blackmar, J., at Special Term.