5 N.Y.S. 65 | N.Y. Sup. Ct. | 1889
This action, which was of claim and delivery, was brought to recover several cases of goods which were then in the storage warehouse of the defendant, and the sheriff took possession of the property, which he still retained when the motion to interplead was made. The receiver claimed the property on the ground that it had been fraudulently disposed of by Lillienthal, and therefore authorized the application on behalf of the creditors whom he represented. The application seems to have been made in good faith, without collusion with the defendant or any one else, and in the discharge of a duty imposed upon him by his appointment as receiver. It was resisted upon the ground that it was not shown, as it should have been, by appropriate evidence that the claim interposed against the plaintiff would probably be successful, and that its merits should have been examined for the purpose of determining that question; and, further, that if the merits had been examined upon the facts and the law, the result would have been a denial of the remedy sought. The argument on behalf of the appellant, although elaborate, seems to have overlooked the peculiar provisions of section 820 of the Code of Civil Procedure, and the effect of it where adverse claims are made in an action kindred to this. By that section it is provided that a defendant against whom an action to recover a chattel is pending, at any time befpre answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same property, without collusion with him, may apply to the court upon notice to that person and the adverse party for an order to substitute that person in his place, and to discharge him from liability to either, by delivering possession of the property or its value, to such person as the court directs. And it further provides that the court may in its discretion make such an order. This section was considered interpreted in Bank v. Mayor, etc., reported in 4 N. Y. St. Rep. 565, and it was there declared that the right of the defendant to succeed in an application made under its provisions was not restricted to demands which might probably be made successfully against the subject of the controversy. It was only necessary for the defendant to show, in order to avail himself of its provisions, that a person not a party to the action makes a demand for the same debt or property, without collusion with him. The section, it will be observed, applies only to proceedings by motion' and by a defendant, as is said in the case of Railroad Co. v. Arthur, 90 N. Y. 237. The facts required by the section under consideration having been established, and the judge in the court below having in the exercise of his discretion made the order asked for, it cannot be disturbed, unless it appears that the discretion exercised was abused. There is nothing in the case to justify such a conclusion. The effect of the section, it must also be observed, is to create a distinction under its provisions, and an action in the nature of an interpleader, for the reason that in the latter it is necessary to show that the claim interposed is substantial, and will probably be successful, in order to entitle the plaintiff to maintain his action, as illustrated by the case of Bank v. Yandes, 44 Hun, 55, and the cases cited. The decision in Vosburgh v. Huntington, (made at special term,) 15 Abb. Pr. 254, is not in
Daniels, J., concurs. Van Brunt, P. J., concurs in result.
