Majority
p. 141(6 Misc. Rep. 527.) HEYMAN v. SMADBECK. (City Court of New York, General Term. January 18, 1894.) Argued before FITZSIMONS and NEWBURGER, JJ.
Headnote
[nterpleader—Adverse Claims.Where defendant, in an action on an award, seeks to interplead a third person, who does not claim any right to the award, but claims that he is entitled to a debt on which the award is predicated, it is not a case where two persons are claiming the same thing, though the award is void because of irregularities.
Appeal from trial term.
Action by Adolph Heyman against Louis Smadbeck. From an order granting a motion for an interpleader, plaintiff appeals. Reversed.
Otto Irving Wise, for appellant.
Edwin L. Kalish, for respondent.
The plaintiff’s cause of action is based upon an award. The person whom the defendant seeks to interplead (one Meier) does not pretend or claim that he is entitled to said award, but claims that he is entitled to the debt upon which the award is predicated. Even the defendant’s moving affidavits show this to be so. It is therefore apparent that two persons are not claiming the same thing, which is absolutely necessary before the right to an interpleader is established. The fact alleged by defendant that
p. 142
the said award is based upon irregular proceedings, and lis therefore void, is proper and good by way of defense, and should be so pleaded in defendant’s answer, but does not entitle him to an inter-pleader. The defendant’s moving papers conclusively show that he is not subjected to a double demand for the same thing. The order must therefore be vacated, with costs.
NEWBURGER, J.. concurs in the result.