Friedman v. Platt — 21 N.Y. St. Rep. 190

Majority

p. 190

Christian G. Friedman, App’lt, v. James N. Platt et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Interpleader—Order—When proper.

The defendants were the custodians of a certain fund, which was demanded by two separate parties. The defendant, stood indifferent as between both claimants. An order of interpleader substituting one of the claimants in the place of defendants was made, from which this appeal was taken. Held, that as there was no evidence of any collusion between the defendants and the party asking for the order, it was properly made.

Appeal from special term order, substituting Rachel Rosenberg as defendant herein.

Christian G-. Moritz, for app’lt; John M. Bowers, for resp’ts.

There is absolutely no merit in this appeal. The defendants are attorneys and counselors-at-law. They became the custodians of §2,000, which they were directed to pay to one Rachel Rosenberg if the title to certain real estate held by her under a contract of purchase, which contract had been assigned to the plaintiff, should prove to be perfect according to the terms of such contract; but if the title was not perfect, then the said sum of §2,000 was to be paid to the plaintiff or his assigns. A dispute arose as to whether a good title under this contract had been tendered or not, and the money was demanded of the defendants by Mrs. Rosenberg on the one hand and by the plaintiff on the other. The plaintiff thereupon brought suit against defendants to recover the $2,000, and the defendants, who make no claim to the money, moved for an order of inter-pleader, substituting Mrs. Rosenberg in their place, which was granted.

There is some dispute upon the motion papers as to whether the sum of $2,000 was deposited with the defendants by Mrs. Rosenberg or ’by the plaintiff. That the money was paid by the check of the plaintiff there is no doubt, but the defendants allege that they understood that the money belonged to Mrs. Rosenberg, being paid to her by the plaintiff upon the assignment of her contract; and being left by her with the defendants, at the request of the plaintiff, in order to secure him in the event of the title proving defective.

I think that such w-as the real character of the transac-.

p. 191

tian. The defendants stood indifferent as between both claimants to the fund. There was no evidence which would have justified the court in holding that there was any collusion between the defendants and Mrs. Eosenberg.

The order of interpleader was properly granted and should be affirmed, with costs and disbursements

Van Brunt, Ch. J., and Daniels, J., concur.