58 N.Y.S. 125 | N.Y. App. Div. | 1899
This is an appeal from an order of interpleader. It was'made to-, appear to the court below that on November 28, 1898, the firm of Hoadley & Co.-had on deposit with the defendant a sum of about' $45,000 ; that on the day named, they filed their petition in bankruptcy ; that they were ad judged bankrupts in December, 1898, and the plaintiff was appointed trustee of their estate in February, 1899..
,It is insisted by the respondent that it is entitled to the order of interpleader under section 820 of the Code of Civil Procedure, , upon the mere showing that a person, not a parjy to the action, has . made a demand for the same debt or property without collusion, and in support of that view it relies upon certain cases,, such as Dreyfus v. Casey (52 Hun, 96), in the opinion, in which case it is said that it. is only necessary in moving for an interpleader tinder .section 820 of the Code for a defendant to show, in order to, avail' -himself of its provisions, that a person not a party to the action makes'a demand for the same debt or property without collusion with him. It is argued that the section, applying only to a proceed-• ing by motion, requires less to be shown than would be necessary to support an' action for an interpleader. The case cited has been criticised in other decisions; notably in Burritt v. Press Publishing Co. (19 App. Div. 610), in which it is said that both the old action , of interpleader and the Code provision contemplate the same result, . which is to relieve a party from contesting a claim in which he has . no interest; that the practice has been simplified by the Code pro- . vision; that that provision is a substitute for the' action, but that . fact furnishes no reason for dispensing with such proof as was heretofore required to entitle a party to relief by suit. In Schell v. Lowe (75 Hun, 43) it was held that the remedy authorized by sentian 820 of the Code of Civil Procedure is a substitute for the f, action -of interpleader, and is governed entirely by the same prin- , .cipl.es, and it is there proclaimed that in such a suit it must be shown . that there are adverse claims to the same thing; that the complainant has no. beneficial interest in that thing ; that he cannot determine,, without hazard, to which of the claimants the thing belongs; that . there is no collusion between the person seeking the relief and the claimants, and that he brings the money into court to await the deter- , mination as to its ownership. In Nassau Bank v. Yandes (44 Hun, 55) it was held that a reasonable doubt that the stockholder would be safe in paying must be shown.
Section 820 of the Code makes it discretionary with the court to
In Roberts v. Vanhorne (21 App. Div. 369) the subject is again considered, and there it was held that an order of interpleader should not be granted where the moving affidavit failed to state facts or circumstances which placed in doubt the' right of the plaintiff to recover the moneys he sued. for .or which failed to show that the demand of an alleged claimant had some reasonable foundation from which the inference might be drawn that the moving party would be placed in danger were the order not granted. And the same view was again, taken in Wertheimer v. Independent Order Free Sons of Judah (28 App. Div. 64). From these cases if appears that the discretion resting in the court under section 820, will not be exercised in the direction of granting an interpleader and thus involving a plaintiff in serious controversies and litigations with third parties unless something more appears than that a demand has been made, or a notice of claim served upon a defendant seeking to interplead. That is the situation in this case. No facts are shown which indicate that the defendant is really placed in peril with reference to this fund by reason of anything contained in the notices served by the Tropical Company and Mr. Keith. . The basis of the Tropical Company’s claim does not appear in its notice ; that of Mr. Keith seems to he based on an allegation that the proceeds of negotiable paper belonging to him have gone into the bank accounts of the bankrupts. But the same notice in each case, which would locate the moneys claimed by those parties in the National City Bank, also locates the identical moneys in the Western Bank of the City of New York, for the -notices are directed to_both banks_for precisely.
Without considering other questions that have been raised on this appeal, we think the order must be reversed, with costs, and the motion for the interpleader denied, with costs.
Van Brunt, P. J., Barrett and Eumsey, JJ., concurred.
Order reversed, with costs, and motion denied, with costs.