Sickles v. Wilmerding

13 N.Y.S. 43, 66 N.Y. Sup. Ct. 375, 36 N.Y. St. Rep. 562, 59 Hun 375, 1891 N.Y. Misc. LEXIS 949

• Court: New York Supreme Court
• Decided: January 16, 1891
• Status: Published

Opinion

Per Curiam.

It seems to us beyond question that both the actions which are brought against the defendants Wilmerding, Morris & Mitchell come within the definition of actions upon contract, and the right to recover depends upon priority of liens, and the only controversy arises between Sickles as sheriff and Sullivan as receiver in respect to such priority. This being the case, the defendants have' no interest in the controversy, and should be relieved upon paying the subject-matter of the controversy into court. We think, however, that the court below erred in making the sheriff defendant in the receiver’s suit. The sheriff’s action was first commenced; and,-the receiver having subsequently commenceci an action, if any interpleader was made, he should be brought in as defendant in the sheriff’s suit. We think, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, to abide the final event of the action, and an order of interpleader entered in the action of the sheriff bringing in th% receiver as defendant, and discharging Wilmerding, Morris & Mitchell upon payment of the money into court.