Aks v. Buffalo Savings Bank

Appellate Division of the Supreme Court of New York

Aks v. Buffalo Savings Bank

274 A.D. 893, 82 N.Y.S.2d 660, 1948 N.Y. App. Div. LEXIS 3930

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 11, 1948

StatusPublished

This text of 274 A.D. 893 (Aks v. Buffalo Savings Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aks v. Buffalo Savings Bank, 274 A.D. 893, 82 N.Y.S.2d 660, 1948 N.Y. App. Div. LEXIS 3930 (N.Y. Ct. App. 1948).

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Opinion

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.]

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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.]

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Bluebook (online)

274 A.D. 893, 82 N.Y.S.2d 660, 1948 N.Y. App. Div. LEXIS 3930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aks-v-buffalo-savings-bank-nyappdiv-1948.

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