This action was brought to foreclose a notice served under the lien law.
A number of claimants have filed the necessary papers to create liens, and the defendant now applies for an order permitting him to pay into court a certain sum which he admits to be owing to the contractor, substituting such claimants in his place, and discharging him from liability.
The plaintiff, however, claims that there is due from the defendant a larger sum than he admits to be due, and sufficient to pay himself and previous liens.
It is clear that the defendant does not bring himself within the provisions of the 122d section of the code, to succeed on this motion. The claim must he by different persons for the same debt, and the amount of the debt must he settled, so that the same can he paid into court. It has no where been allowed for a party who disputed the amount of his liability, to substitute another person to bear the expense of the litigation. *667If the amount is not beyond dispute, no interpleader can be allowed. Here the defendant not only claims for credit on account of payments, but deductions from the contract price for bad work, for delay in finishing, and for unfinished work of large amounts, and then offers to pay the balance into court. To grant this application would be virtually a decision that the defendant was entitled to all the deductions claimed, without any opportunity to the other parties to test the validity of these claims.
I see no difficulty in the defendant setting up in his answer the various liens which have been created in this matter, in the order in which the notices were filed; and if upon the trial of the case, it shall appear that the amount for which he is liable to the contractor, is less than the whole amount of the liens prior to that of the plaintiffs’, he can obtain the decision of the court upon the right of the plaintiffs to recover at all against him. So, also, it has been supposed that in many instances it may be'come necessary, in proceedings under the statute authorizing these liens, to bring before the court all the parties who are interested, in order that a final determination of the matters in controversy may be made, and a distribution of the fund ordered.
The practice under this statute is still unsettled, and these suggestions are made rather to call the attention of the defendant’s counsel to them, than as an intimation of any course proper for him to take in this matter.
It is enough for the purposes of the present motion to say, that the case is not one for an interpleader; because the amount due from the defendant is unascertained; because the defendant claims himself a deduction from the sum due to the contractor; and because the claims of the several persons filing the notices of their demands are not for the same debt.
The 122d section referred to, does not prevent the defendant from commencing a suit for the purpose of an interpleader, if he see fit, although he would find the same difficulty in his way there that exists on this motion.
Motion denied, without costs.