109 Misc. 215 | N.Y. Sup. Ct. | 1919
The plaintiff herein brought an action for merchandise stored with the defendant by the Alpha Lithograhie Co., Inc. The complaint alleges that the defendant issued a receipt of which a copy is incorporated in the complaint and that thereafter the receipt and the ownership of the goods mentioned therein were assigned to the plaintiff by the bailor and that the defendant refused upon demand to deliver the goods to the plaintiff. The defendant has moved for an order that Perkins, Goodwin & Co., which also makes claim for these goods, be interpleaded and brought in as an additional party defendant. It appears from the affidavits filed on this motion that
It is quite evident from these facts than since there is only one lot of merchandise stored with the defendant, there can be only one owner who has a right to demand delivery of the goods from the defendant, but since the defendant has chosen to issue two separate receipts which have come into the hands of different parties, it may well be that the defendant might be estopped from showing the true facts and might be liable to both claimants. It is therefore not strictly a stakeholder without interest in the subject-matter of the controversy, and in the absence of statute no inter-pleader would lie. It has been frequently said in carefully considered opinions that section 820 of the Code, which provides for interpleader by order in certain
It follows that the motion should be granted to the extent that Perkins, Goodwin & Co. be interpleaded and made a party defendent in this action.
Motion granted.