Freda v. Montauk Co. — 55 N.Y.S. 748

Majority

p. 748

FREDA v. MONTAUK CO.

(City Court of New York, General Term.

January 18, 1899.)

Headnote

Interpleader—Conflicting Claims to Same Res.

A-defendant, sued for the use of plaintiff’s teams, is not entitled to an order of interpleader, where claimant’s debt against plaintiff was for the keep of the teams, since plaintiff and claimant do not claim. the sanie money.

Appeal from special term.

Action by Carmine Freda against the Montauk Company. From an order granting defendant’s motion for an order of interpleader, plaintiff appeals.

Reversed.

Argued before MCCARTHY and O’DWYER, JJ.

Henry Wendt, for appellant.

William J. Kelly, for respondent.

It is necessary for the defendant upon this motion to show that the claim of the third party has some reasonable foundation, and that the defendant will incur a hazard by paying; that they claim the same thing. Bassett v. Leslie, 123 N. Y. 396 , 25 N. E. 386 ; Railroad Co. v. Arthur, 90 N. Y. 234 ; Stevenson v. Insurance Co., 10 App. Div. 233 , 41 N. Y. Supp. 964 . Defendant’s affidavit states that the action is for a balance due for use of horses and teams, and for services rendered in connection with work done on the defendant’s property at Montauk Point, in Suffolk county. It states that Sirignano claims that he called for and fed the horses, and that his balance now sued for is really due him. The plaintiff and Sirignano are not claiming the same money. Defendant is a debtor to plaintiff for work done on its property, and the plaintiff owes Sirignano for caring for and feeding horses. The facts as set forth do not establish a lien on the money at common law, and he has no mechanic’s lien under the statutes.

The order appealed from should be reversed, with costs, and the motion denied, without costs.

MCCARTHY, J., concurs.

Cases cited

Bassett v. Leslie 123 N. Y. 396 N.Y. 1890-10-28 p. 748
Baltimore & Ohio Railroad v. Arthur 90 N. Y. 234 N.Y. 1882-10-17 p. 748