[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 236 The order should be reversed.
First. No appeal was taken from the order made in Kings county, in the suit between Arthur and this plaintiff, and it was not within the jurisdiction of the General Term.
Second. The rest of the order is not warranted by the facts before the court. It cannot stand upon the Code. Section 820, cited by the respondent, was no doubt applicable to the case sought to be made by the defendant (plaintiff here) in the action brought by Arthur. It there moved as defendant, and sought the relief offered to a litigant in that character, but its case did not satisfy the court, and the present suit is not within the statute (§ 820, supra). It applies only to proceedings by motion, and by a defendant.
Third. No new facts were presented in this case, and the plaintiff acquired no additional right by changing the form of its proceeding. According to the settled doctrine of equity, a party acknowledging himself a debtor may, when subjected to a double demand for payment, have relief on showing that there is a question to be tried and that he is ignorant which claimant has the better right. But here the sum admitted to be due is not the sum for which Arthur sues. The plaintiff claims to retain from it an alleged indebtedness for freight. The amount due cannot be the subject of controversy in an interpleader suit, and this difference between the debt claimed by the defendant, and the sum which the plaintiff is willing to pay, presents an insuperable objection to its prosecution; for as to so much, it does not admit title, or right of payment in either claimant (Sto. Eq. Pl., § 295; 2 Sto. Eq. Jur., § 821.) In the next place, the plaintiff is not shown to incur any hazard in paying according to its contract. The transaction between *Page 238 it and Arthur was of the simplest kind — a purchase of goods at a fixed price; on the other hand, no title or color of title is given to Power. (Sto. Eq. Pl., § 293.) Nor does he claim to be entitled. On the contrary, he says he is "not prepared to say" the plaintiff "should pay him." At most, his declaration is that upon some adjustment in future of unnamed transactions between the Chrome Steel Company and Arthur, he may "be found entitled to receive payment." The mere pretext of a conflicting claim is not enough to show that the plaintiff is in any danger of loss from an inability to determine to whom the debt in question should be paid. The relation between itself and Arthur is the ordinary one of vendee and vendor, and it was a sufficient answer to the motion that the plaintiff showed no such claim of right in Arthur's co-defendant, as he might interplead for, and by its allegations bring in question the amount due to either. A debtor cannot, in this summary manner, discharge a creditor with partial payment, or prevent him from enjoying the fruits of his bargain.
The order of the General Term should be reversed, and that of the Special Term affirmed, with costs.
All concur.
Ordered accordingly.