Brackett v. Graves, 30 A.D. 162

30 A.D. 162 | N.Y. App. Div. | 1898

Landon, J. :

• We think the order appealed from should be reversed.

1. It is not alleged that the defendant Martha McDonald makes any claim against the plaintiff or his late firm for the.$810.50 which Minnie C. Graves is seeking to recover against the executor, but that she may make it. To maintain an action of strict interpleader it must appear that two or more persons prefer the same claim against the defendant. (Bassett v. Leslie, 123 N. Y. 396 ; Crane v. McDonald, 118 id. 648 ; Nassau Bank v. Yandes, 44 Hun, 55.)

The appellant’s action is for conversion against A. Pond alone. Mrs. McDonald prefers no claim for conversion against A. Pond; she prefers none for the .$810.50 against anyone. The plaintiff ■ wishes to make a claim for her which she declines to make for herself. She cannot be forced to make the claim. Mrs. McDonald assigned the bond and mortgage to the appellant. Ro reference is made to the $810.50 in the pleading of either party in the action of Pond, French & Brackett against Per, and it does not appear that in the hearings had in that action she claimed any credit for the money. Indeed, she alleges in that action that she employed Mr. French only. Thus there are not two rival claimants pressing the same demand against the plaintiff.

2. The plaintiff claims a beneficial interest in the $810.50. He seeks to deduce title to the money through Mrs. McDonald. He, therefore, is not a stakeholder indifferent as to which claimant shall be awarded the fund. (Cases supra.)

■ 3. The appellant in her separate action against Pond for conversion would have to prove the tort alleged. Even if Pond’s former-partners were also wrongdoers jointly with him, she was n’ot obliged to sue them. There is no right to contribution among wrongdoers. It is not alleged that Pond’s executor demands contribution, and, perhaps, he will-not. Thp plainti£|k'will|' not be bound to contribute because of the judgment'" against Pond, but, if at all, because Pond paid the $810.50 by mistake to the credit of Mrs. McDonald, upon her account with the firm. Thus, whatever equity may by possibility arise between the members of plaintiff’s late firm results from transactions between themselves after Pond had obtained the $810.50, and not by reason of any rival claims between Mrs. McDonald and Miss Graves upon the plaintiff. (National Union Bank v. Kleinwort, 15 App. Div. 478.)

4. The plaintiff is not free from laches. This action seems to-have been brought- in Saratoga county when the trial of 'the appellant’s action in Cortland county could no longer be deferred: (Pond v. Harwood, 139 N. Y. 111; National Union Bank v. Kleinwort, supra.)

Without considering other points urged by the appellant, we. think the order should be reversed.

All concurred, except Putnam, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.