
    Chamberlain v. Almy.
    (City Court of New York
    General Term,
    May, 1893.)
    Defendant paid one-half of plaintiff’s claim for brokerage, and in an action to recover the balance, defendant obtained an order discharging himself from liability and substituting one P. as defendant upon proof that P., through some arrangement with plaintiff, claimed one-half of the commission.
    
      Held, that it appearing from the record that plaintiff was entitled to the whole commission, and that whatever claim P. had was against C., and that defendant was under no liability to him whatever, the order of interpleader should be reversed.
    As it was discretionary with the justice who heard the motion to receive P.’s affidavit prior to making a decision, an order refusing to strike out P.’s affidavit, received after the argument, should be, affirmed.
    Appeal from order allowing interpleader, and from order refusing to strike out affidavit filed, after argument of motion.
    
      Joseph G. Gay, for appellant.
    
      Phillips dé Avery, for respondent.
   Ehrlich, Ch. J.

The plaintiff’s, claim was for $165, brokerage, on which the defendant paid one-half, leaving eighty-two dollars and fifty cents due. The action was for this balance. Upon application of the defendant, and on proof that one Fan-ton claimed one-half of the original brokerage, to wit, eighty-two dollars and fifty cents, under some arrangement with Chamberlain, the plaintiff, "the court made an order that the defendant be discharged from liability and that Fanton be substituted as defendant in his place. There was no such claim to the same debt ” as the Code contemplates. The defendant was not warranted in assuming that under some arrangement with Chamberlain, Fanton became jointly interested in the brokerage, or entitled to one-half thereof, nor authorized in acting on the assumption by paying Chamberlain, one-half of the $165, and then compelling him to litigate with Fanton as to the other half. There could be no such division or separation of the original debt made by the act of the defendant alone. There was no claim that Fanton was employed by the defendant and no proof that he was under any liability to him whatever. It would seem from the record that Chamberlain was entitled to the entire commission, and that whatever claim Fanton had was against Chamberlain after he had received the whole. Wemple v. McManus, 59 N. Y. Super. Ct. 418; 15 N. Y. Supp. 86; 39 N. Y. St. Repr. 141.

The justice who heard the motion had the right to receive affidavits from either party, prior to making a decision of the motion, and it was discretionary with him whether he would receive Fanton’s affidavit or not. Such matters are very much within the control of the judge who heard the original «application.

The order denying the motion to remove Fanton’s affidavit from the record will, therefore, be affirmed, with costs, but the order directing the interpleader must, for the reasons before stated, be reversed, with costs,

FTewburger, J., concurs.

Ordered accordingly.  