
    Owen T. Sullivan, Respondent, v. James J. Crowe and Dennis J. McCarthy, Appellants.
    
      Party — where several claimants to a fund should not be all brought in as defendants in an action brought by one of them.
    
    An application made under the 2d clause of section 820 of the Code of Civil Procedure which provides, “ upon it appearing that the defendant disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action. The court may, in its discretion, make such order upon such terms as to costs and payments into court of the amount of the debt or part thereof, or delivery of the possession of the property or its value or part thereof, as may be just, and thereupon the entire controversy may be determined in the action,” should only be granted where the question to be determined is as to the right of the rival claimants to money or property in the hands of the defendant, and not in a case where the right of each claimant to recover depends upon a state of facts which does not affect the other claimant.
    In an action by the vendor of a saloon against the brokers who conducted the sale, to recover a portion of the purchase price retained by the brokers, an application made by the brokers under the 2d clause of section 820 of the Code of Civil Procedure for an order making the purchaser of the saloon a party defendant in the action, will not be granted upon affidavits showing that the purchaser of the saloon has repudiated the purchase, because of alleged false representations made by the brokers to him in connection with the sale and has demanded of the brokers repayment of the purchase price, where no claim is made that the plaintiff either made or authorized the representations upon which the purchaser bases his right to repudiate the purchase.
    In such a case the liability of the brokers to the plaintiff and the liability to the purchaser do not depend upon the same state of facts.
    Appeal by the defendants, J ames J. Crowe and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1902, denying the defendants’ motion to join John 0. Krull as a co-defendant in the action and staying the action begun by the said John 0. Krull against these defendants until the determination of this action.
    
      Jacob H. Shaffer, for the appellants.
    
      Albert L. Phillips, for the respondent.
   Ingraham, J.:

This action was brought to recover the purchase money paid- to the defendants, who were brokers, as the purchase price of a saloon of the plaintiff located at No. 7 Pine street in the city of New York. The complaint alleges that the plaintiff employed the defendants as brokers to sell this saloon; that thereafter, on February 19, 1902, under such employment they sold the saloon to John O. Krull for $3,000 ; that the said sum was paid to defendants by Krull, and that the defendants have paid the plaintiff $500 on account of such purchase money; and plaintiff demands judgment for $2,500, the balance thereof. The defendants made a motion to make the purchaser, John O., Krull, a defendant in the action upon an affidavit of one of the defendants that Krull agreed to purchase this saloon on the 18th day of February, paying therefor on that day the sum of $500 on account of the purchase money, and on February twentieth the balance of the purchase money, the bill of sale to be delivered oh the 24th of February, 1902. On the 21st of February, 1902, the defendants were served with a paper purporting to come from Krull by which he demanded the repayment of the purchase money and notified the defendants not to pay the same, or any part thereof, to any one except to him, and on the same day the defendants were served with a letter from the plaintiff’s attorney directing them to retain the money and pay the same over to no person except the plaintiff. On the 26th of February, 1902, this action was com. menced. On the 27th of February, 1902, the defendants were served with a summons in an action in this court in which Krull was plaintiff, but no complaint was served therewith.

■ The situation, therefore, seems to be that the defendants are the holders of this sum of $2,500 as a part of the consideration paid by Krull for the purchase of this saloon, having received $3,100 ; $500 of which had been paid to the plaintiff, and $100 of which was paid to the defendants by Krull as their commissions; that Krull has repudiated the purchase and demands the repayment of the $3,100 to him, and that the plaintiff demands the payment of the amount paid by Krull to the defendants. The defendants claim that they are entitled to $1,000 of this money received from Krull as their commissions, which the plaintiff promised to pay in case he sold the saloon for $3,000. There is no allegation by Krull that the plaintiff personally made any representations to him, nor do the defendants allege that the representations that they made as to the business, of the saloon were authorized by the plaintiff. It may be that the defendants would be liable to both Krull and the plaintiff. Krull claims, in his affidavit that his action against the defendants is for the conversion of his (Krnll’s) money that he has paid to the defendants; this, I presume, upon the theory that the money having been paid by the plaintiff to the defendants upon their fraudulent misrepresentations as to the business of the saloon, he was entitled to repudiate the purchase, and thereupon the money in the defendants’ hands belonged to him, and, upon a failure to return it to him upon demand, the defendants converted the money to their own use and thus are-liable to him, irrespective of any obligation that they may have to the plaintiff. Whether or not he could succeed in that action is not for us now to determine.

■The question is whether or not the defendants are entitled to have Krull made a party to this action under section 820 of the Code of Civil Procedure. Section 820 of the Code is' as follows : A defendant, against whom an action to recover upon a contract, * * * is periding, may, at any time before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs; or, upon it appearing that the defendant, disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action. The court may, in its discretion, make such order upon such terms as to costs and payments into, court of the amount of the debt or part thereof, or delivery of the possession of the property or' its value of part thereof, as may be. just, and thereupon the entire controversy maybe determined in the action.” It is under this latter clause of the section that the defendants claim the right to have Krull made a party defendant. Whether or not such an application would be granted is in the discretion of the court, and we think it should, only be granted where the question to be determined is as to the right of the rival claimants to money or property in the hands of the defendant and not in a case where the right of each one of the claimants to recover depends upon a state of facts which does not affect the other claimant. Krull’s fight to recover really depends upon whether or not the defendants falsely and fraudulently represented to. him that the saloon was different from what it in fact was and which representation induced him to part with.his money. The liability of the defendants to Krull and to the plaintiff does not depend upon the same state of facts. Both causes of action, it is true, are based upon payment of the money by Krull to them, but it would seem to be entirely unjust .to. the plaintiff to inject into his litigation against the ■ defendants to recover money that they had received which belonged to him, a dispute between the defendants and Krull as to whether or not the defendants did make false and fraudulent representations to Krull upon the faith, of which he parted with his money.

The case of American Trust & Savings Bank v. Thalheimer (29 App. Div. 170) does not apply, for there the right of the plaintiff and the other claimants to the money depended, not upon any act of the defendant, but upon. the title to 'the'property, the proceeds of which the defendant had in his hands. In that action the defendant claimed no title to the monéy. -He alleged that he was ready and willing to pay it over to the sheriff and the execution creditors, who were the other claimants, as soon as it should be determined which of said parties was legally entitled thereto, and asked that he be permitted to pay the same into court, and that the sheriff or said execution and attaching creditors be substituted as parties defendant in the action in his place or that they be brought in as parties defendant with him. In this case the defendants make no offer to pay any sum of money into court, and admit no liability to any one.

We think the court correctly denied the motion, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  