196 A.D. 540 | N.Y. App. Div. | 1921
The action is brought to recover of the defendant two-thirds of $5,000 which was received by the defendant as commission for the sale of the steamship American. This ship was owned by some parties in Halifax and was put in the hands of Simpson & Co., shipbrokers, in Boston, for sale. Simpson & Co. had an agent in New York by the name of Gallupe. The steamship was also .put in the hands of the defendant for sale. Gallupe introduced the plaintiff to the "defendant, and the plaintiff thereafter brought about the sale of the steamship for the sum of $35,000. Thirty thousand
“ The United Transportation Company
“ Steamship Agents
“ 17 Battery Place
“ New York
“ Cable Address: ‘ Uteco,’ New York.
“ Codes: Scott’s A. B. C. Fifth Edition.
,, “ 5th. September, 1919. , ’
,, “ Mr. M. Rosenthal, ’
“ 18 Broadway,
“ New York City:
“ S. S. American.
“ Dear Sir.— We hereby agree to protect you for two-thirds (%) of the commissions accruing from the sale to be consummated through you of the S. S. American or two-thirds (%) of overage of $5,000.00 over the net purchase price to the owners of $30,000.
“ Very truly yours,
“ THE UNITED TRANSPORTATION COMPANY,
“ J. H. Rogers, Treasurer.”
Some evidence was introduced to show that prior to this sale an agreement was made between the plaintiff and the defendant and Gallupe representing Simpson & Co., that the $5,000 commission, when received, should be received by the defendant and was to be divided into three equal parts, of which the defendant was to retain one part, and one-third was to be paid to the plaintiff and one-third to Simpson & Co. Simpson & Co. make claim against the defendant for their one-third under the agreement. After this action was commenced the defendant sought by motion to interplead Simpson & Co., and a man by the name of Berger who had also made a el aim for the share of the commissions which were to be paid to the plaintiff. The claim of Berger was afterwards withdrawn. This motion for interpleader was at first denied for failure to serve notice thereof upon Simpson & Co., with leave to renew upon showing proper service. The motion was there
The order for interpleader was properly denied. In order to interplead a third party the defendant must make personal service upon the party to be interpleaded so as to bring that party within the jurisdiction of the court. In order to bring such a party within the jurisdiction of the court such service would seem to be necessary as is prescribed for the service of a summons. A summons would be required to be served under section 426 of the Code by making personal service thereof within this State. Section 430 of the Code of Civil Procedure, however, provides for the designation of a person upon whom the summons or papers in an action may be served. But that section is limited to the right of a resident of the State to make such designation and certain formalities are required in order to make such designation effective to authorize the person designated to receive such summons or other paper for the commencement of an action. The designation must be executed and acknowledged and filed with the clerk of the county. The written consent of the person so designated must be so executed, acknowledged and filed. The power of attorney, which authorized Gallupe to receive service of any papers which might otherwise be served did not conform to the requirements of that section, and if it did so conform it would not be effectual to authorize the person designated to receive the summons or notice of motion because such designation could only be made thereunder by a resident of the State. Simpson was a resident of the State of Massachusetts. The order, therefore, denying the defendant’s motion to interplead the defendant Simpson & Co. was properly made and should be affirmed.
In directing a verdict for the plaintiff the trial court was of opinion that the .paper executed by the defendant constituted a contract obligation which could not be varied by
Confessedly the defendant was entitled to retain one-third of this $5,000. One-third of it is acknowledged by the defendant to belong to the plaintiff upon which part payment has been made and judgment qffered for the balance. If the purpose of the paper was merely to acknowledge the rights of the plaintiff and Simpson & Co. in two-thirds of those commissions, it would seem, under the authorities cited, that the defendant might make proof thereof, especially as Simpson
The order denying motion for interpleader should be affirmed, and the judgment and order denying a new trial reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Dowling and Merrell, JJ., concur; Greensaum, J., concurs in affirmance of the order denying interpleader, and dissents from the reversal of the judgment, which in his opinion should be affirmed.
Order denying motion for interpleader affirmed; judgment and order denying new trial reversed and a new trial ordered, with costs to appellant to abide event.