Aks v. Buffalo Savings Bank

Full title: MORRIS AKS, Appellant, v. BUFFALO SAVINGS BANK, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 11, 1948

274 App. Div. 893 (N.Y. App. Div. 1948)

Opinion

October 11, 1948.

In an action to recover a broker's commission, two orders were made under section 51-a of the Civil Practice Act. Order granting leave to defendant to give notice of the pendency of the action to a nonresident claimant, and order staying proceedings upon payment by defendant into court of the full sum demanded in the complaint, affirmed, with one bill of $10 costs and disbursements. No opinion.

Carswell, Acting P.J., Adel, Nolan and Sneed, JJ., concur; Johnston, J., dissents and votes to reverse the orders and to deny the motions, with the following memorandum:

The writing signed by plaintiff on March 22, 1948, is a promise by him to pay Savage out of the "commission received" a portion thereof. This creates a claim by Savage against plaintiff, but it does not give Savage any direct claim against defendant. Unless Savage has such a direct claim, the orders may not be upheld. The situation in the case at bar is in all respects similar to that in Mitchell v. Catlin Powell Co. ( 71 Misc. 450), cited with approval in Pouch v. Prudential Ins. Co. ( 204 N.Y. 281, 287), where an order denying interpleader was affirmed. [See post, p. 928.]