Dreyer v. Rauch

10 Abb. Pr. 343, 3 Daly 434, 42 How. Pr. 22

Opinion

Loew, J.

*

By section 8 of the Code, the provisions of that act from sections 69 to 126, both inclusive, are made applicable to actions in all the courts of the State.

That this refers to actions in the district and other inferior courts as well as to those in courts of record, is evident from the fact that the same section declares that the other provisions of the second part of the Code shall relate to actions in the supreme court and the other courts of record, and also for the reason that in the enumeration of the courts of this State in section 9, the justices’ (now district) and other inferior courts are mentioned.

It is quite clear, therefore, that after the passage of the amended Code in 1849, section 122 was applicable to actions in the inferior as well as the higher courts.

If, however, there could be any doubt as to whether the provision in regard to interpleader which was added to that section in 1851, applies to those courts, the same is removed so far as the district courts are concerned by section 48 of the district court act (Laws of 1857, ch. 344, § 48);

That section makes section 64 of the Code of Procedure applicable to those courts, and subdivision 15 of the last named section declares that the provisions of that act (i. e., the Code), respecting forms of action, parties to actions, &c., shall apply to said courts.

Blow the provisions concerning parties to actions are embraced within sections 111 to 122 of the Code, both inclusive. The district courts, therefore, unquestionably possess the power to compel adverse claimants of the same money or property to interplead if the case be a proper one.

It may, perhaps, be doubtful whether this power of compelling parties to interplead extends to persons residing outside of the respective districts over which these courts have jurisdiction; but as the defendant Schmitt submitted himself to the jurisdiction of the court, and appeared in the action without objection, it is not necessary to express an opinion on that point at present.

The question then arises, was the case under consideration a proper one for the exercise of that power ?

I have no hesitation in saying that it was.

The action was brought to recover commissions the amount of which was agreed upon by all parties.

Moreover, each of the claimants insisted that the ' purchaser was his customer ; that the sale was effected through his individual agency or exertions, and each of them demanded the same sum of money from the defendant Rauch. The latter admitted that he was bound to pay one party or the other, and the only point to be determined was to whom the same was to be paid.

The affidavit of the defendant, Rauch, I have no doubt, was sufficient to confer jurisdiction on the court below to make the order of interpleader.

It showed:

1. That an action upon contract was pending against him, in which issue had not been joined.

2. That a person not a party to the action made a demand of him for the same debt or sum of money.

3. That he was not in collusion with said person.

4. That he was indifferent to the claims of either party; and

5. That he himself had no interest in, and made no claim upon, the moneys held by him, but was ready and willing to deposit the same in court, to abide the event of the action.

That, I apprehend, was all that the Code required, or was requisite should appear in the affidavit.

But if, as is contended by plaintiff’s counsel, and some of the authorities seem to hold, it be necessary for a party to show in addition that he is ignorant of the rights of the respective claimants, and does not know to which he can safely pay the money in his hands, then, in my opinion, that clearly appeared from the facts alleged and averments contained in the affidavit.

I do not know of any case, nor has our attention been called to any, which decides that that must be stated in terms.

Respecting the merits of the case, I am unable to agree with plaintiff’s counsel, that the justice erred in deciding that the defendant Schmitt was entitled to the money deposited in court.

Whichever of the two parties was the procuring cause of the sale was entitled to the commission.

It is true, the plaintiff first called the attention of the purchaser to the bakery in question; but, from the testimony returned to us, it appears that that was all he did. It resulted in' no agreement, and the negotiation fell through.

Several months thereafter the defendant Schmitt, without knowing (as appears by his testimony) that Rasp’s attention had previously been called to the said bakery, offered the same to him (Rasp), brought him and the seller together, and finally succeeded in effecting a sale.

Under these circumstances I do not see how it can be fairly claimed that the plaintiff found the-purchaser, or that he was the procuring cause of the sale.

In my opinion the court below was correct, not only in making the order of interpleader, but also in rendering judgment in favor of the defendant Schmitt, and I think the judgment should be affirmed.

Robinson and J. F. Daly, JJ., concurred

Judgment affirmed.

Present, Robinson, Loew and J. P. Daly, JJ.