Venable v. New York Bowery Fire Insurance

Headnote

Interpleader—motions for depend upon same principles as actions for.— Attachment creditor not in position to attach title of assignee of his debtor to chose in action.

Appeal from an order granting an application made by the defendant to substitute one Schlessinger an attaching creditor in its place and discharge it from liability, upon payment into court of the sum claimed in the complaint.

The action was brought to recover on a policy of insurance, covering furniture, &c., . in a house at Saratoga Springs, issued by the defendant to one Gustav B. Salfield. The loss occurred April 22, 1882. The policy of insurance, was assigned by the insured to Olga Salfield April 27, 1882. An order of attachment in a suit by Schlessinger against Gustav B. Salfield, was served on the defendant’s agent April 28 or 29,1882. Judgment in that action for $1,680.94-was recovered and docketed in Saratoga county on July 20, 1882. Olga Salfield assigned the policy of insurance to the plaintiffs on May 17, 1882, and on May 18, Gustav B. Salfield assigned to the plaintiff all causes of action and rights of action and all money due and to grow due on the policy.” This action was begun September 16, 1882. Before the time for answering expired, and on October 3, the defendant made this motion of interpleader. The motion was granted and the money has been paid into court.

The court at General Term said : “ It is well established that motions for interpleader depend upon the same principles as actions of interpleader, and that where an action of interpleader could not be maintained an order ought not tobe made. "An attachment creditor is not in position to assail, in any form of action the title of an assignee of his debtor to choses in action. Only an execution creditor

can do that. If any doubt remained in regard to this doctrine after its announcement in Thurber v. Blanck (50 JY. Y. 80), arising from the fact that the commission of appeals had at about the same time, reached a contrary conclusion (The Mechanics’ and Traders’ Bank v. Dakin, 51JY. Y. 519), that doubt has been set at rest by the decision in 8 Hun, 431 , affirming a dismissal of the complaint in Mechanics’ Bank v. Dakin, on the ground that the decision of the court of appeals was controlling ; and by the re-affirmance of the doctrine of Thurber v. Blanck, in Castle v. Lewis (78 JY. Y. 131). These cases were not called to the attention of the learned judge who made the order appealed from.”