
    PRATT v. MYERS.
    
      N. Y. Supreme Court, General Term, Fifth Department;
    
    
      April, 1892.
    1. Interpleader.] In an action brought against bankers by the assignee of a depositor to recover a deposit,—held, proper on defendants’ motion to require that the sheriff and the attaching creditor of depositor, who had attached the deposit before the defendants had notice of its assignment to plaintiff, inter-plead with the plaintiff; it appearing that there was a real controversy' between the plaintiff and the attaching creditor, and no collusion being suggested.
    2. The same.] Upon defendants motion for an order of inter-pleader, the plaintiff can not interpose affidavits to support his title to the debt or property in controversy as against the adverse claimant, for that question is the question to be litigated between the two claimants.
    3. Pleading; amendment upon interpleader.] It seems, upon the granting of a motion for interpleader, that the facts upon which plaintiff claims title must be set up by the way of amendment, if not already alleged in the complaint, so that an issue will be tendered in which-the new defendant may join by his answer.
    Appeal by plaintiffs from an order of the Special Term of the Supreme Court, Erie County, substituting certain parties as defendants in place and stead of the defendants against whom the action was brought, and discharging the latter from all further liability on their paying the money claimed by plaintiff into court.
    The action was brought by George L. Pratt against Theodore W. Myers and others, to recover a balance due upon a stock account which one, John C. Allen, had with defendants as brokers, and which Allen had assigned to the plaintiff. The defendants, before answering, moved that Thomas S. Croly, and John J. Gorman as sheriff of the .City and County of New York, be substituted as defendants, and that the Sum claimed to be due Allen might be paid into court.
    The further facts are stated in the opinion.
    
      Moses Shire (Shire & Van Peyrna, attorneys), for appellant.
    
      Simpson & Werner, for respondent.
   Dwight, P. J.

The admitted facts presented by the papers on this motion fully justify the granting of the order. Before January 19, 1891, one, John C. Allen, had deposited with the defendants, who were bankers in the city of New York, the sum of $4,000, in the name of “ Allen & Co.” ; on the day mentioned he caused the deposit to be transferred to the name of “ Allen & Co., Agents”; on March 19, the sheriff of New York county levied on the interest of Allen in the fund aád deposit in question, by virtue of an attachment issued out of the supreme court in Onondaga county, at the suit of one Thomas S. Croly against the said John C. Allen. Twelve days after the levy of the attachment Allen for the first time informed the defendants that the deposit had been assigned by him to the plaintiff in this action, and the latter afterwards demanded of the defendants the payment of the deposit to him, and, on September 1, commenced this action in Erie county to recover the same. Thereupon the defendants moved, on due notice to all parties, that Croly, the plaintiff in the attachment, and Gorman, the sheriff who levied the attachment, be required to interplead with the plaintiff, in the place and stead of the defendants, as defendants in this action, and that, upon payment of the latter into court of the sum of $4,000, they be' relieved and discharged from all further liability in the premises ; and the order was granted, from which this appeal was taken.

These facts seem to present all the elements of a case for interpleader. There is plainly a real controversy between the plaintiff in the attachment and the plaintiff in this action. The present defendants are subjected to a double demand, and there is no suggestion of collusion between them and the defendants proposed to be substituted in their place (Crane v. McDonald, 118 N. Y. 648; Jarvis v. Benedict, 37 State Rep. 588).

Counsel for the appellant in his brief correctly states the real question to be “ Whether at the time of the levy the debt attempted to be levied upon was then due to Allen, or had been previously transferred by him to the plaintiff Pratt.” That undoubtedly" is the question in the case, but it is a question to be litigated in the action between the two claimants of the fund, and not on this motion, and by the defendants, who disclaim any interest in the fund, and declare their readiness to pay it into court, to abide its determination of the question thus propounded.

It is true that the affidavit of the plaintiff, read on the motion, contains a statement of facts tending to establish his title to the fund ; but these facts the plaintiff in the attachment has as yet had no opportunity to meet. So far as they are not already alleged in the plaintiff’s complaint, they must be set up by way of an amendment to that pleading, which is expressly provided for by the order appealed from, and by that means an issue will be tendered in which the new defendants may join by their answer. That issue is one in which the present "defendants have no interest.

The order appealed from should be affirmed, with ten •dollars costs and disbursements.

Macomber and Lewis, JJ., concurred.  