Opinion
October Term, 1897.
H. Seymour Eisman, for the appellant.
John C. Coleman, for the respondents.
There are two fatal objections to the order of interpleader granted herein. The defendants upon the motion failed to give notice to the Chambers McKee Glass Company, as required by section 820 of the Code of Civil Procedure, and in their affidavit failed to state any facts or circumstances which place in doubt the right of the plaintiff to recover the moneys sued for, or which in any way show that the demand of the Chambers McKee Glass Company is well founded. There is merely a statement that the defendants are informed and believe that the Chambers McKee Glass Company base their claim upon the agreement alleged to exist between it and the lunatic; but whether such agreement is oral or in writing does not appear, nor is anything shown as to what were the terms of such agreement. It would be going very far, under such circumstances, where, as here, the plaintiff claims by virtue of a deposit made with the defendants, to hold that the latter, without some sufficient showing, can refuse to comply with the contract under which they received the deposit and evade their duty by attempting to substitute another company, and that company a non-resident. It is doubtful if the defendants are in a position to dispute the plaintiff's title or to assail it by any suggestion that somebody else makes claim to it. But, without deciding that question, it is sufficient here to say that the affidavit does not show any facts which would render it hazardous on the part of the defendants to pay the plaintiff's claim. As said in Stevenson v. N.Y. Life Ins. Co. ( 10 App. Div. 233) : "It must be made to appear * * * that the defendant cannot, without hazard, determine to which of the parties claimant it should pay the moneys, the subject-matter of the action. * * * Some facts or circumstances must be stated which throw some doubt upon the right of the plaintiff to recover the money sued for. It is said in The Nassau Bank v. Yandes (44 Hun, 55): `It is not necessary simply to establish, in order to justify an interpleader, that some claim is presented, but it is necessary, in addition, to prove that such claim has some reasonable foundation or that there is some reasonable doubt as to whether the stakeholder would be reasonably safe in the payment over of the money.'"
As we think, therefore, that there was no proper showing made for the granting of the relief asked for, the order of interpleader should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, however, to renew the application on other papers.
VAN BRUNT, P.J., RUMSEY, PATTERSON and PARKER, JJ., concurred.
Order of interpleader reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew application on other papers.