Heyman v. Smadbeck

6 Misc. 527, 27 N.Y.S. 141, 58 N.Y. St. Rep. 10

• Court: City of New York Municipal Court
• Decided: January 15, 1894
• Status: Published

Opinion

Fitzsimons, J.

The plaintiff’s cause of action is based upon an award.

The person whom the defendant seeks to interplead (one Meier) does not pretend or claim that he is entitled to said award, but claims that he is entitled to the debt upon which the award is predicated.

Even the defendant’s moving affidavits show this to be so.

It is, therefore, apparent that t/wo persons a/re not claiming the same thing, which is absolutely necessary before the right to an interpleader is established.

The fact alleged by defendant, that the said award is based upon irregular proceedings and is, therefore, void, is proper and good by way of defense, and should be so pleaded in defendant’s answer, but does not entitle him to an interpleader.

The defendant’s moving papers conclusively show that he is not subjected to a double demand for the srnne thing.

The order must, therefore, be vacated, with costs.

Rewburger, J., concurs in the result.

Order vacated, with costs.