Taylor v. Satterthwaite , 2 Misc. 441 ( 1893 )

BISCHOFF, J.,

(concurring.) By express provision of section 820 of the Code of Civil Procedure a motion for an order of interpleader is addressed to judicial discretion. The granting of the order is therefore not a matter of right, (Barry v. Insurance Co., 53 N. Y. 536;) and unless it plainly appears that the discretion has. been improperly exercised by the judge at special term his order denying the motion should not be disturbed. To bring himself within the provisions of section 820 of the Code of Civil Procedure defendant Satterthwaite had necessarily to allege that George R. Read, who was sought to be substituted as defendant in his stead, “makes a demand against him for the same debt,” and “without collusion with him;” and to substantiate the allegation of a demand by Read defendant’s affidavit refers to Read’s complaint in the superior court action. No other demand is alleged. From that complaint, however, it appears that Read’s claim is for services rendered at defendant’s request in and about the sale of certain real property, and, 'from the complaint in this action, that plaintiffs claim commissions, as brokers, for having effected the sale. The claims, therefore, though arising from the same subject-matter, are in no sense conflicting. Both may be valid and subsisting at one and the same time. Hence, from defendant’s own showing, a constituent ground for the motion is disproved. True, from Read’s affidavit, which was submitted for the purposes of the motion, it appeared that he then asserted a claim for commissions for procuring the sale. But it does not appear that he had at any time prior thereto asserted a similar claim. His complaint in the superior court action is based upon essentially different grounds, and his affidavit is that of a person in interest. The learned judge at special term may therefore well have concluded that Read’s claim for commissions was only made for the purpose of the motion, and collusively so, to secure an order of inter-pleader; and, if so, it was not only his province, but also his duty, to deny the motion.

The order appealed from should be affirmed, with costs.