Aks v. Buffalo Savings Bank , 82 N.Y.S.2d 660 ( 1948 )

In an action to recover a broker’s commission, two orders were made under section 51-a of the Civil Practice Act. Order granting leave to defendant to give notice of the pendency of the action to a nonresident claimant, and order staying proceedings upon payment by defendant into court of the full sum demanded in the complaint, affirmed, with one bill of $10 costs and disbursements. Ho opinion. Carswell, Acting P. J., Adel, Holán and Sneed, JJ., concur; Johnston, J., dissents and votes to reverse the orders and to deny the motions, with the following memorandum: The writing sighed by plaintiff on March 22, 1948, is a promise by him to pay Savage out of the “ commission received ” a portion thereof. This creates a claim by Savage against plaintiff, but it does not give Savage any direct claim against defendant. Unless Savage has such a direct claim, the orders may not be upheld. The situation in the case at bar is in all respects similar to that in Mitchell v. Catlin & Powell Co. (71 Misc. 450), cited with approval in Pouch v. Prudential Ins. Co. (204 N. Y. 281, 287), where an order denying interpleader was affirmed. [See post, p. 928.]