Sickles v. Wilmerding — 36 N.Y. St. Rep. 562

Majority

p. 562

Daniel E. Sickles, Sheriff, App’lt, v. John C. Wilmerding et al., Resp’ts. David A. Sullivan, Rec’r, Resp’t, v. John C. Wilmerding et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

1. Interpleader.

The plaintiff in the first action sues to recover the proceeds of a sale of goods made hy defendants as commission merchants, upon which he had levied under executions against the owners thereof. The second action is brought to recover the same proceeds by the receiver of said owners. Held, that both actions were upon contract, and the only controversy arose between the several plaintiffs, and hence an order of interpleader was proper.

2. Same.

It is error, however, to make the plaintiff in the action first commenced a defendant in the second action.

Appeal by Daniel E. Sickles, the plaintiff in the first entitled action, from an order made in the second action interpleading and substituting him as defendant therein in the place and stead of the defendants therein, and directing the deposit of the amount in controversy with the clerk of the court, and discharging the defendants from all liability on making such deposit

Sickles, as sheriff, held certain executions against the firm of Rosenberg & Baker, which had consigned goods to defendants for sale on commission. He made a levy on such goods, which were afterwards sold by defendants. Subsequent to said sale Sullivan was appointed receiver of Rosenberg & Baker in supplementary proceedings. Thereafter the sheriff commenced an action to recover the proceeds of such sale, less defendants’ commissions, expenses and advances, and-four days later the receiver commenced Bis action to recover the same amount

On motion of the defendants, made in the second action, the

p. 563

order in question was made, interpleading and substituting the sheriff as defendant in that action.

D. P. Hays, for app’lt; W. Mitchell and F. B. Kellogg, for resp’t.

It seems to us beyond question that both the-actions which are brought against the defendants Wilmerding, Morris & Mitchell come within the definition of actions upon contract, and the right to recover depends upon priority of liens, and the only controversy arises between Sickles, as sheriff, and Sullivan as receiver, in to such priority.

This being the case the defendants have no interest in the controversy, and should be relieved upon paying the subject matter of the controversy.

We think, however, that the- court below erred in making the . sheriff defendant in the receiver’s suit. The sheriff’s action was first commenced, and the receiver having subsequently commenced an action, if any interpleader was made, he should be brought in as defendant in the sheriff’s suit.

We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements to abide the final event of the action, and an order of interpleader entered in the action of the sheriff bringing in the receiver as defendant, and discharging Wilmerding, Morris & Mitchell upon payment of the money into court

Van Brunt, P. J., Brady and Daniels, JJ., concur.