Simons v. Hearn — 44 N.Y. St. Rep. 767

Majority

p. 767

Martin Simons, App’lt, v. Arthur H. Hearn et al., Resp’ts.

(City Court of New York, General Term,

Filed February 8, 1892.)

Headnote

Interpleader — When proper.

In an action by the assignee of a claim for goods sold it is proper to substitute as defendant in place of the debtor an officer wlio has attached the claim on behalf of creditors of the assignor where there is no collusion between the officer and the debtors. •

p. 768

Appeal from order of interpleader, substituting the sheriff as-defendant and discharging the defendants on.their depositing the fund in dispute in court.

Herman Frank, for app’It; Vanderpoel, Cuming & Goodwin, for resp’ts."

The plaintiff's assignor sold and delivered goods of the value of $75.08 to defendants on October 5, 1891. On October 9 the assignment was made to plaintiff. On October 10 _ the sheriff attached said account on behalf of creditors of plaintiff's assignor, one Silberstein.

On November 13 this action was commenced; on November 24 an order was made substituting the sheriff as defendant herein and discharging present defendants from liability to plaintiff or to said sheriff, and directing that the fund in dispute be paid into-court.

From said order this appeal is taken.

The sheriff and the plaintiff herein claim the same thing, viz.,, the $75.08 sued for herein. The defendants, are willing to pay to t-he person entitled thereto said fund, but cannot without risk and hazard to themselves' determine which one of the claimants-is entitled to it.

There is no collusion between them and the sheriff. Under these circumstances the order appealed from was properly granted. Crane v. McDonald, 118 N. Y., 654 ; 30 St. Rep., 98 .

Order appealed from affirmed, with costs.

Yan Wyck, J., concurs. .