Barnett v. Max L. Typermass & Co.

133 N.Y.S. 454

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 8, 1912
• Status: Published

Opinion

SEABURY, J.

This action was originally brought against the defendant Typermass & Co. by the plaintiff, claiming to be the assignee of a copartnership doing business under the name of the Corona Paper Box Manufacturing Company. The claim of the partnership against Typermass & Co. was for a balance alleged to be due for boxe's which the partnership had delivered to it. The defendant Typermass & Co. admitted that it was indebted to the partnership in the sum of $60.10, and denied that any further sum was due from it to the partnership or any of its assignees. The plaintiff claimed to be the assignee of Nathan Barnett. The defendant Galluci claimed to be the assignee of one Abraham Quartin, who with Nathan Barnett composed the partnership known as the Corona Paper Box Manufacturing Company. After the plaintiff and Galluci had both made demands upon it, the defendant Typermass & Co. moved the court, not only to interplead Galluci as a party defendant, but also to make Nathan Barnett and Abraham Quartin parties defendant. This motion was granted, and the defendant Typermass & Co. deposited the sum of $60.10 in court, to abide the event of the action.

[1] In so far as the order of interpleader permitted the defendant Typermass & Co. to pay the amount conceded to be due into court and directed that Galluci should be made a party defendant, we are of the opinion that it was sanctioned under section 187 of the Municipal Court act. Neither Nathan Barnett nor Abraham Quartin questioned the assignments which each was alleged to have made to their respective assignors. It was. therefore irregular to make the plaintiff’s assignor and the assignor of Galluci parties defendant in the action.

[2] In view of what subsequently took place, we think that we may-disregard this irregularity. Quartin, the alleged assignor of Galluci, did not appear as a party, and no judgment has been entered against him. Barnett, the alleged assignor of the plaintiff, did appear, and claimed that he was improperly made a party defendant, and his claim was sustained, and no judgment has been entered against him. Notwithstanding the irregularity in the order of interpleader, it appears that the only persons who were before the court as parties were the plaintiff, Typermass & Co., and Galluci. It was proper for the court, by interpleader, to bring these parties before the court. Siegel v. Goldstone, 133 N. Y. Supp. 453, Appellate Term, filed January 10, 1912, not yet officially reported.

The court below found that the defendant Typermass & Co. was not indebted to the partnership or any of its assignees in a greater sum than $60.10, which was the amount which this defendant deposited into court. A review of the record satisfies us that this determination is sustained by the evidence.

In our judgment, however, the evidence does not sustain the determination of the court below that Galluci, as against the plaintiff, is entitled to the $60.10 which Typermass & Co. deposited into court. The evidence in relation to the time when these assignments were made is very unsatisfactory. It would seem that the assignment to the plaintiff was prior to that made to Galluci. We are of opinion, also, that greater latitude should have been allowed in the cross-examination of the assignor of Galluci in relation to the circumstances under which the assignment was made. Under these circumstances, we think the plaintiff is entitled to a new trial in so far as Galluci is concerned.

[3] There is, however, no reason why the whole judgment should be reversed. In so far as the plaintiff and the defendant Galluci claim to be entitled to a greater sum than $60.10 from the defendant Typermass & Co., it has been properly determined that their claim is without merit. There is no reason, therefore, for putting the defendant Typermass & Co. to the expense of a new trial of the issues.

Judgment in favor of Typermass & Co. is affirmed, with costs against the plaintiff; and in so far as the judgment is in favor of Galluci and against the plaintiff it is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.