Hood Rubber Co. v. Banque Belge Pour L'Etranger

Proskauer, J.

The plaintiff owed for merchandise bought from Fred Stern & Co., Inc. The debt was claimed by the Banque Beige under a trust receipt and by the Ultramares Corporation under an assignment. The defendant Childs, as trustee in bankruptcy of Fred Stern & Co., Inc., attacks the validity of the assignment as void under section 15 of the Stock Corporation Law and as preferential (and, therefore, voidable) under the Bankruptcy Act. He attacks the title of the Banque Beige on the ground that the trust receipt was rendered invalid by a long-continued course of conduct between Fred Stern & Co., Inc., and the Banque Beige in ignoring the potency of trust receipts, aüd that the trust receipt was merely a secret, void and unenforcible. hen The plaintiff brought an action of interpleader against all three claimants and moved for leave to pay into court and be discharged and to interplead the three claimants. The Special Term made an order granting the motion as to the Banque Beige and the Ultramares Corporation, but denying it as to the trustee in bankruptcy. From the order denying his right to remain a party the trustee in bankruptcy appeals.

The only burden that rests on the trustee is to show a reasonable foundation for his claim. (Pouch v. Prudential Ins. Co., 204 N. Y. 281; McNamara v. K. of C., 206 App. Div. 364.) He is not compelled to set forth the evidence upon which his claim rests. It is not improbable that he would be compelled to get this evidence from witnesses, strangers to himself, upon trial. He does here clearly define the basis of his claims. If he is successful in asserting them, he will defeat the rights of either or both of the other claimants. With respect to the Ultramares Corporation — if the claim is void under section 15 of the Stock Corporation Law, the trustee owns it. With respect to the Banque Beige — if his claim is correct, the transfer is fraudulent and he owns the debt under section 70 of the Bankruptcy Act. He complies, therefore, with the extreme of the requirement for interpleader for which the respondents contend. But even if he fell short of this compliance, he is a person who “ has an interest in the subject ” of the action and, under subdivision 3 of section 193 of the Civil Practice Act, he would be entitled, in the discretion of the court, to come in and defend. Having already been made a party, his showing of a reasonable interest in the subject-matter of the action saves him from exclusion from participation therein.

The order appealed from should be modified in accordance with this opinion, with ten dollars costs and disbursements to the defendant, appellant, as against the defendants, respondents.

Dowling, P. J., Merrell, Finch and McAvoy, JJ., concur.

Order modified in accordance with opinion, with ten dollars costs and disbursements to the defendant, appellant, as against the defendants, respondents. Settle order on notice.