Rogers v. Picken Realty Co. , 105 N.Y.S. 281 ( 1907 )

Platzek, J.

The Picken Realty Company sold a'house to one O’Brien; the defendant Etchingham acted as broker and claimed the commission amounting to $260. The Frank L. Fisher Company, claiming to have been the procuring cause of the sale, assigned its claim to this plaintiff, who brought an action against the realty company to recover the same commission. Upon a notice of motion, based upon an affidavit made by the president of the realty company, setting forth all the material and jurisdictional facts necessary for that purpose, which were not disputed., the court made an order permitting the realty company to pay the amount claimed of it into court and ordering that the defendant Etchingham be interpleaded and substituted as defendant in place of the realty company and that he be required to appear and plead. This order was expressly consented to by the attorney for Etchingham and it recites that, upon the hearing of the motion, the plaintiff’s attorney “appeared;” and it does not appear that the plaintiff ever objected to the making and entry of the order, at any stage of the proceedings, until upon the appeal taken by him from the judgment. The defendant Etchingham filed an answer and the case proceeded to trial, the issue being between the plaintiff and the defendant Etchingham ; and the question to be determined was, who was the procuring cause of the sale of the house to the purchaser, O’Biden. The testimony given raised purely a question of fact, upon which there was a conflict of evidence; and a reading of the record discloses no reason for a reversal, or for arriving at a different result from that reached by the court below. The plaintiff’s attorney urges, very strenuously, that the judgment in favor of the defendant should be reversed, upon the ground that the Municipal Court has no jurisdiction to grant an order of interpleader in a case of this kind. In this he is mistaken. The case of Dryer v. Rausch, 3 Daly, 434, was one similar to the case at bar. In that case each claimant insisted that the purchaser was his customer, and the sale effected through his individual agency or exertions, and each demanded the same sum of money from the defendant Rausch, and an order substituting one Schmidt for Rausch was held proper. The cases of McCreery v. Inge, 49 App. Div. 133, and Olsen v. Moran, 50 Misc. Rep. 655, are not in conflict with the case of Dryer v. Rausch, supra, or with the cases of Englander v. Fleck, 51 Misc. Rep. 567, citing Bauer v. Benner, 11 Daly, 229; McElroy v. Baer, 13 id. 442; Satkofsky v. Jarmulowsky, 49 Misc. Rep. 624. In the cases of McCreery v. Inge and Olsen v. Moran, above mentioned, each claim was based upon a separate contract, alleged to have been made between the claimants and the defendant ; but where there is in the hands of a defendant a sum of money which belongs to the plaintiff or a third person and claimed by them, and the holder of the fund has no interest in the subject-matter, and the question to be determined is the title to the particular fund in respect to which the claims are made, an order substituting the second claimant in place of the original defendant may be- made, and such order is provided for by section 187 of the Municipal Court Act. Nor is an order so made subject to the criticism that it invokes equitable powers. Englander v. Fleck, supra. In the case of Jacobs v. Lieberman, 51 App. Div. 542, the plaintiff objected to such an order being granted, but took no steps to review it, and the substituted defendant consented; and it was held that the court had jurisdiction of the subject-matter and that neither party was in a position to question the validity of the order.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.