Fanslow v. Manufacturers Trust Co. , 181 Misc. 272 ( 1943 )

Walsh, J.

These are two actions by brokers for commissions for the sale of the same property to the same purchaser. The Manufacturers Trust Company, defendant in both actions, moves to have Mortimer Steinfels, the plaintiff in the second action, substituted as the defendant in the first action, and to have the Manufacturers Trust Company discharged from liability to both plaintiffs, upon paying into court the amount of the commission, $3,830, and interest. The application does not seek any disposition of the second cause of action. This appears to be a proper case for interpleader. While it is possible that a seller of real property may make himself liable to two brokers for the sale of the same piece of property to the same purchaser, in this case the defendant will ultimately be liable for the payment of only one commission. The seventh paragraph of the complaint in the first action provides: “ That the plaintiffs herein represented that they were the only brokers who were instrumental in bringing about the said sale and agreed to indemnify the defendant and hold it free and harmless against any and all claims that may be made against defendant by any other broker in connection with the sale of the aforesaid premises to the purchaser therein named.” Mortimer Steinfels, the plaintiff in the second action, should be substituted as the defendant in the first action, and Elmer Gr. Fanslow and Leo Pincus should be substituted as defendants in the second action. Both actions should be consolidated and tried together. (Williamsburgh Sav. Bank v. Avery, 260 App. Div. 1047; Vought v. Rowland, 261 App. Div. 971; Carmody, New York Pleading and Practice, vol. 11, § 770).