Taylor v. Satterthwaite

PBYOB, J.

The learned judge at special term assigned a single cause for the denial of the motion, but the order will be upheld if it may be supported upon any ground apparent in the papers. Nevertheless we are quite satisfied that the reason given for the decision in question is sufficient to sustain it. By the terms of the Code, (section 820,)1 an order of interpleader is allowable only when the competing creditors demand “the same debt or property.” The thing about which these creditors are in controversy is a debt, and the question is as to the identity of the claims they respectively prefer. As the party sought to be substituted for the defendants has reduced his claim to the formality and certainty of a cause of action in a complaint, that statement of it undoubtedly is the most authentic exposition of its character. Looking, then, to the complaints of the creditors proposed to be inter-pleaded, we find that they proceed upon essentially different claims or causes of action. The Taylors sue for brokers’ commission as such, and accordingly they allege their employment as brokers to sell the property, a sale of the property, their effective agency in the sale, the customary commission for the sale of real property, and their complaint concludes with a demand of judgment for that specific commission. Read’s action is for work, labor, and services in the sale of the property; and, consistently, he omits the allegations as to the customary commission, that he was the procuring cause of the sale, and, indeed, that a sale was actually consummated. To entitle a broker to his commission on a sale, he must be the procuring cause of the sale; but one employed only to render services in a sale may conceivably recover for those services although he did not in fact negotiate the sale. Hume v. George C. Flint Co., (Com. Pl. N. Y.) 11 N. Y. Supp. 431. The decisive test of the identity of debts is the identity of the evidence to support them, and here, manifestly, to support the causes of action advanced by the claimants would require a diversity of proof. We are unable to affirm that the claims of Taylor and Read, respectively, against Satterthwaite constitute one and the same debt.

Another ground apparent in the papers affords sufficient support to the order. “To sustain an action of interpleader it must appear that the plaintiff is ignorant of the rights of the respective claimants.” Trigg v. Hitz, 17 Abb. Pr. 436; Machine Co. v. Gifford, 66 Barb. 599; Morgan v. Fillmore, 18 Abb. Pr. 217. The plaintiff must show that “he is ignorant which claimant has the better right.” Railroad Co. v. Arthur, 90 N. Y. 234, 237. In a letter to the Taylors, owners of the property sold, now moving for the interpleader, recited the facts of the transaction, and concluded: “ I think, therefore, you will readily see on these facts as now given you that you are not entitled to a commission on the sale.” The facts recited show to demonstration that the rival claimant was entitled to the commission. Upon the defendants’ own statement there can be no reasonable doubt as to the validity of Read’s claim, and of perfect security in paying the money to him; and this fact presents still another ground in support of the order. Bank v. Yandes, 44 Hun, 55. But, although the defendants make a case for interpleader under the Code, it does not follow, of course, that the order will issue. It is still within the discretion of the court whether to grant the relief, (Barry v. Insurance Co., 53 N. Y. 536;) and we are of opinion that in this instance an interpleader is inconsistent with a judicious discretion. Before notice of the motion, Read had begun an action on his claim in the superior court. He had a right to select his forum, and it is a familiar rule that the court first acquiring jurisdiction retains it to the end. Comity suggests that such court should not be molested or hindered in the disposition of the case by the action of a co-ordinate tribunal. It is answered that to interplead Read in the action depending in the common pleas will in no wajr interfere with his action in the superior court. If that be so, then two actions for the same cause will be in agitation at the same time before different tribunals, and may result in contradictory judgments. In the superior court it may be adjudged that Read is entitled to the money, and in the common pleas that the Taylors recover the indentical debt. Here would be an embarrassing conflict. If it be that the interpleader of Read in this court will not arrest his action in the superior court, the fact affords a conclusive reason why, in the exercise of discretion, we should not compel him to come hither. If, on the contrary, the effect of an order of interpleader be to detach the action from the control of the superior court, then do we oust their jurisdiction 'in regard of the comity which is indispensable to the harmonious co-operation of co-ordinate tribunals. Grant v. Quick, 5 Sandf. 612. In either alternative, it would appeal that our discretion had been improvidently exercised. Nor is this all. It may be that, by compelling an interpleader, we should embarrass the claimants in maintaining their respective rights. For support of his action in the superior court Read will undoubtedly rely on Sattertirwaite’s admission of liability to him; but would that be evidence against the Taylors? On the other hand, would a declaration of Satterthwaite, favorable to the Taylors be competent evidence against Read? Be this as it may, we are persuaded that the learned judge at special term discreetly exercised his discretion in denying the interpleader.

Order affirmed, with costs.

1 Code Civil Proc. § 820, provides: “A defendant against whom an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel is pending, may, at any time before answer, upon proof by affidavit that a person not a part)' to the action makes a demand against him for the same debt or property, without collusion with him,"apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs. The court may, in its discretion, make such an order. ”