Heymen v. Smadbeck — 58 N.Y. St. Rep. 10

Majority

p. 10

Adolph Heymen, App’lt, v. Louis Smadbeck, Resp’t.

(New York City Court, General Term,

Filed January 18, 1894.)

Headnote

Iktebpleaiier—Right.

The right to an interpleader is not established where two persons are not claiming the same thing.

Appeal from an order granting a motion for an interpleader.

Otto Irving Wise, for app’lt; Edwin L. Kalish, for resp’t.

The plaintiff’s cause of action is based upon an award. The person whom 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 affidavit shows 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 the said award is based upon irregular proceedings, and is 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 interpleader. The defendant’s moving papers conclusively show that he id not subjected to a double demand for the same thing. The order must, therefore, be vacated, with costs.

Newburger, J-, concurs in result.