187 A.D. 30 | N.Y. App. Div. | 1919
The learned justice at Special Term says in his opinion that the Gillespie claim against Evans grows out of a transaction with which the defendant trust company had no connection, and that any claim which they may have against Evans growing out of a direct transaction, which does not include an assignment of the fund in the hands of the trust company must be sued for in a separate action. We think the learned judge was misled so that he overlooked the fact that the Gillespies assert, whether rightly or wrongly is of no moment, that Evans has broken the original agreement under which the deposits were made, by failing to “ deposit with the Trust Company all payments received by him from the United States Government.” In Gillespie’s action against Evans and the trust company he demands an accounting with respect to all matters embraced in the joint venture, including any sums that may be deposited to the credit of said joint venture in the Guaranty Trust Company, and expressly demands that Evans account for all moneys received by him “ under his said contract with the United States Government dated August 16, 1917.” Whether interpleader would be proper on the sole ground that Evans had breached the joint venture agreement by failing to turn over the stock and profits of the Atlantic Loading Company enterprise, it is not necessary to determine. There is a direct charge that he has retained to his own use a large portion of the moneys received by him from the government under the original contract of August 16, 1917, and if this is true, he may have no right or interest in the twenty-four per centum of profits retained by the trust, company for the benefit of Gillespie and himself.
The order should be reversed, with ten dollars costs and disbursements, and the motion for interpleader granted, with ten dollars costs.
Mills, Rich, Putnam and Kelly, JJ., concurred; Jenks, P. J., not voting.
Order reversed, with ten dollars costs and disbursements, and motion for interpleader granted, with ten dollars costs. Order to be settled on notice.