Though the contract sued upon has a protective clause enabling the owner to withhold a sum to cover liens by subcontractors, he has still the risk and vexation of double suits. Since section 820 of the Code of Civil Procedure has been enlarged by Laws of 1894,' chapter 246, a defendant may interplead claims which he disputes in whole or in part. In a suit by the chief building contractor, sublienors should be brought in so that such dependent or competing claims shall be together heard and finally adjudicated. Not only may it be settled to whom a conceded indebtedness belongs, but the amount claimed may be also contested. A default established against the subcontractor, whether in whole or in part, affects the plaintiff contractor whose recovery is dependent on full performance. Hence the owner’s reserved .right merely to deduct the subcontractor’s separate recovery is not an adequate protection. All in such privity should, therefore, be before the court, and concluded by its judgment. (Newhall v. Kastens, 70 111. 156; Illingworth v. Rowe, 52 N. J. Eq. 360.)
The circumstance that since filing his hen and securing it by undertakings, the plaintiff elected to proceed in personam, and not to enforce his hen, does not prevent defendant from joining the subcontractor so as to have a judgment concluding *477both. The right to interplead does not depend on the form of the complaint, or the judgment it demands. (4. Pom. Eq. Juris. [4th ed.] § 1321.) This relief is because of the hazard, vexation and expense to the defendant, thus called on to meet such distinct and conflicting claims.
I advise, therefore, that the order of the Special Term be reversed, with ten dollars costs and disbursements, and that defendant’s motion be granted, but without costs.
Jenks, P. J., Mills, Rich and Kelly, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.