26 N.Y.S. 991 | N.Y. Sup. Ct. | 1894
An action was brought to recover from the defendant James Lowe $3,000 for rent of certain premises leased by him from Richard J. Clarke and Caroline Clarke, May 1, 1891. The term of the lease is five years, and the rental $3,000 per annum, payable. monthly in advance. Richard J. Clarke died - June 10, 1892. During the month of October following, William J. Clarke and George B. Clarke commenced an action, claiming that Richard J. Clarke died intestate, seised of the premises in.question; that they were his heirs; and demanded judgment for the possession of the premises, for an accounting of the rent, and for damages. Lowe answered, denying knowledge or information sufficient to form a belief as to the rights of the respective parties; .alleging the making of the lease, .and his¡ possession thereunder; offering to pay the rent into court or otherwise, as ordered. A contest was then pending over an alleged will of Richard J. Clarke, but subsequently, and on April 24, 1893, it was admitted to. probate. The next day, however, proceedings* for revocation of probate were instituted by William J. Clarke and George B. Clarke, which were undetermined at the time this motion was made. June 17, 1893, this plaintiff, Alice A. Schell, claiming as devisee under such will, and as assignee of Caroline Clarke, commenced this action to recover the rent of the premises from, July 1, 1892, to July 1, 1893. Thereupon this motion was made, the defendant Lowe stating in his affidavit, which formed a part of the moving papers, among other things, that he had no interest in the result of the claim óf either of the parties,, and that the claim of either had not been made through any collusion with him. The court determined that defendant was entitled, under section 820 of the Code of Civil Procedure,
The decision of the court at special term is fully within and authorized by Bowery Nat. Bank v. Mayor, etc., 4 N. Y. St. Rep. 565; Pratt v. Myers, (Sup.) 18 N. Y. Supp. 466; Barnes v. Mayor, etc., 27 Hun, 236; Dreyfus v. Casey, 52 Hun, 95, 5 N. Y. Supp. 65. It is not in conflict with Bank v. Yandes, 44 Hun, 55. It was not held in that case that a moving party should manifest by appropriate language that he had doubts as to which of the claimants urging upon him the payment of money, which he ought not to pay but once, would ultimately be successful, but that the facts upon which a moving party bases his claim for the order of interpleader should be such as to satisfy the court, that there was a reasonable doubt as
‘‘There must always be a real doubt in the mind of the defendant, based upon facts, as to who has the just claim, before an interpleader should be permitted, or the provisions of the Code (section 820) enforced.”
So far as I have observed, the case thus quoted from is the only one in which a court has said that the failure of a party to express his opinion touching the claims of success likely to attend the efforts of either of the contending parties should be treated as a fact, to be weighed by the court in connection with actual facts, in determining whether he is entitled to the relief which the Code undertakes to provide for those meriting it. It is not unlikely that through inadvertence the word "defendant” was used where "court” was intended. Had it been so written, it would have more nearly harmonized with several other decisions. But, while it was quoted in Mars’ Case, supra, it was not necessary for the decision in that case, because the point was not involved. It was made use of, doubtless, with the view that it tended to support the determination made that it must appear from the facts presented in support of the motion that the claim of a person sought to be substituted as a party defendant was not frivolous, but plausible, and such as to create a reasonable doubt touching its validity. Subsequently, and in the same case, (69 Hun, 398, 23 N. Y. Supp. 658,) that court reaffirmed the position thus taken. How, the facts presented on the motion clearly brought Lowe within the protection of the rule laid down in Bank v. Yandes and Mars v. Bank, supra. Without collusion on his part he had been made a party defendant in an action wherein it was claimed that his lessor had died intestate as to these premises, by reason of which the plaintiff, as his heir at law, demanded the rents. As further evidence of the plausibility of the plaintiff’s claim the fact was made to appear that, in pursuance of the statute authorizing proceedings for revocation of probate, the plaintiffs were then contesting the validity of the will before the surrogate; and it w“as as devisee uUder that will that the plaintiff in this action claims the right to recover the rent which Lowe in his lease had promised to pay his lessor, Richard J. Clarke. From these facts it is apparent that the court could not have held otherwise than that a reasonable doubt was presented as to which one of the claimants would ultimately be adjudged to be entitled to the rent. Indeed, it is not conceivable what other facts could have been shown, except the evidence upon which the contestants were relying to attack the validity of the alleged will. Ho case has gone so far as to hold that it is necessary to produce such evidence on motion for interpleader. To take such a step would be to practically deny the relief which
Code Civil Proc. § 820, provides as follows: “A defendant against whom, an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel, is pending, may, at any time before answer, upon, proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, 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, on his paying into court the amount of the debt, or delivering possession of the property, or, its value, to such person as the court directs. The-court may, in its discretion, make such an order.”