63 N.Y.S. 158 | N.Y. App. Div. | 1900
The action is brought for an interpleader, the plaintiff alleging that in the month of November, 1899, he sold certain premises in the city of New York for the sum of $450,000; that each of the defendants claims to be entitled to a commission of one per cent
It appears that the defendant Inge has brought an action in this court, in the county of Kings, claiming that he is entitled to the commission of $4,500 for brokerage upon the sale of this land and asking to recover that sum. Upon these papers the plaintiff seeks to secure an injunction restraining the defendant Inge from' prosecuting his action, and from the order granting that injuction this appeal is taken.
An action of interpleader can only be maintained when some debt or duty is required from the plaintiff by each 'of the defendants, and there is a privity between the adverse titles of the defendants for the reason that their titles are derived from a common source, and the plaintiff has no interest in the subject-matter, but has in his hands a sum which belongs to one of the defendants, and the matter to be determined is the title to the particular thing or fund in respect to which the claims are made. (Pom. Eq. Juris. §§ 1323, 1324, 1325.) None of these elements exist in this case. Each one of the defendants, if he claims a commission. does so because of the contract which he has made with the plaintiff and for services which he has rendered in regard to the sale of the property. There is no allegation in the complaint that a single contract was made with all the defendants by reason of which the plaintiff became entitled to pay to them the whole sum of $4,500, but the allegation is that the defendants “ severally ” claim to be
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and injunction vacated, with ten dollars costs.