Trembley v. Marshall

118 A.D. 839, 103 N.Y.S. 680, 1907 N.Y. App. Div. LEXIS 766

Opinion

Scott,. J.:

We have here presented the not infrequent case of a single sale of real property, with two brokers each claiming to have been the sole efficient cause of the sale, and, therefore, entitled to the commission. There is no pretense or suggestion that defendant has rendered himself liable to pay double commissions, and he, conceding his liability to one or the other of the claimants, but unable to determine between them, and unwilling to do so at his own risk, asks to interplead them, paying the sum claimed into court, and leaving the rival claimants to litigate over it between themselves. There is good reason and ample authority for granting his motion. (Rasines v. Ives, 85 App. Div. 483 ; Dreyer v. Rauch, 3 Daly, 434 ; Shipman v. Scott, 12 Civ. Proc. Rep. 109 ; Bickart v. Hoffmann, 19 N. Y. Supp. 472.)

We find no foundation in the papers for the claim that, in any legal sense, the appellant has disputed the plaintiff’s claim. At the most he has expressed only an opinion that it is not well founded.

This is not sufficient to defeat his motion. The order should he reversed, with ten dollars costs and disbursements,'and the motion granted, with ten dollars costs, upon the payment into court by defendant of the amount claimed.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon payment into court by defendant of amount claimed.