Bernstein v. Hamilton

49 N.Y.S. 932

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1898
• Status: Published

Opinions

RUMSEY, J.

The plaintiffs claim that they are entitled to recover from the defendants the amount of $1G0, for commissions which they earned upon the sale of certain real estate belonging to, or under the control of, the defendants. No answer has been interposed. The defendants, however, moved in due time that one Aaron Wainess should be substituted as a defendant, for the reason that, as they say, Wainess claims to be entitled to one-half of the commissions, pursuant to an agreement made by him with one of the defendants and one of the plaintiffs. This contract, however, is denied by the plaintiffs. The moving papers do not admit, in terms, a liability existing on the part of the defendants towards the plaintiffs for these commissions, or for anything else. On the contrary, there is an affidavit of merits, in which it is stated that the defendants have a good and substantial defense on the merits to the cause of action set forth in the complaint. In the face of this allegation, the defendants have no right to an interpleader, which can only be ordered when the defendant admits a liability to some one for the full amount claimed, and the only question is to whom he owes it. Railroad Co. v. Arthur, 90 N. Y. 234. There is no admission of that kind in these papers, but the contrary. It may be that the defendants are indebted, not only to the plaintiffs, but to Wainess, but that fact is of no importance here. It is sufficient that the defendants do not concede that they are indebted to the plaintiffs in the amount of this claim, or in any amount, and for that reason this order should not have been granted.

The order is reversed, with $10 costs and disbursements, and the motion of inteipleader is denied, with $10 costs. All concur: O’BRIEN, J., in result.