(dissenting.) The order for interpleader was refused upon the ground that the two claimants were not demanding the same debt. Code, § 820. The plaintiffs, as brokers, employed to sell defendants’ property, allege that by means of their services, the property was sold to one George G. Havens, Jr., and'they demand the customary brokers’ commission. The other claimant has also sued the defendant upon a complaint alleging an indebtedness to him for work, labor, and services as real-estate broker performed at the request of defendant in the sale of the same property. Upon the face of the two complaints it might be questionable whether the latter action might not be for services other than procuring the purchaser, Havens; but all doubt upon the subject is dispelled by the affidavits of the plaintiff in that action, George R. Read, and his employe, William McAllister. In those affidavits they show that Read sues for the “usual brokers’ commissions for the sale of the house” to the purchaser above named. They swear to the employment and to effecting the sale, and Read says that his claim is for the usual brokers’ commissions for the sale of the premises mentioned. With such affidavits, it is impossible to deny that both claimants are after the same commission or debt. The learned judge at special term has decided upon the pleadings only, but these are controlled by the positive affidavits of the parties showing that, whatever vagueness there might be in the complaint of Read, his demand is the same as that of the plaintiffs in this action. It is urged that the defendant knows which party is entitled to the commission; but, in the nature of things, the owner of the premises cannot know that. The transactions of the purchaser were not had in his presence, and he can have but an opinion based upon information. Such an opinion he expresses in a letter to these plaintiffs, in which he states the facts he knows, and then concludes that the .plaintiff’s are not entitled to the commissions. But the merits of the respective claimants can only be ascertained when the two claimants adduce their proofs before a jury, as against each other, and this interpleader should therefore be allowed. It is urged as a reason for denying this motion for interpleader, that the claimant Read has begun an action in the superior court. No interference with that action will result from the order now applied for. The defendant here will pay into court the fund in dispute, and leave the two brokers to contest their right to it. That will leave him still subject to the jurisdiction of the superior court, to which he must apply for any relief it may deem proper to grant him. The action in this court was the first one brought. Had the superior court acquired jurisdiction first, I *191should be in favor of withholding the interpleader in this action until a similar motion had been submitted to the court, as I think the application should be first made in the tribunal in which the defendant is first sued, and, if made in good faith, should be granted. To hold otherwise, and decide that, where the claimants have sued in different tribunals, an insuperable objection to interpleader is presented, would enable claimants in every case to nullify the statute of interpleader, and prevent the exercise by the courts of the discretion vested in them by the legislature for the ends of justice. The order should be reversed, and the motion for interpleader granted.