
    SHERMAN a. PARTRIDGE.
    
      New York Superior Court; Special Term,
    
    
      February, 1855.
    Interpleader.—Sale of Goods.
    An order of interpleader under § 132 of the Code can only he made, when it is certain that the only question is whether the plaintiff or a third person is the true owner of the debt, fund, or other property for which judgment is demanded.
    When it is insisted that the defendant is absolutely liable, and is precluded from setting up the title of a third person as a defence, his application to be discharged from the suit must be denied.
    It is only in an action against the defendant himself, that the question of his absolute liability can be properly raised and determined. A judge would exceed the just limits of his authority by so deciding the question upon a motion, as to put an end to the action, and bar an appeal.
    When the action is for the recovery of a-debt arising from the sale of goods, the purchaser cannot require, his vendor to interplead with a third person claiming to be the owner of the goods. This is not a case in which an interpleader has ever been allowed, nor is it embraced within the terms of the Code.
    
      Motion under '§ 122 of the Code, that one Henry Delafield be substituted as the sole defendant, and the present defendants be discharged from all liability to either party, upon their' paying into court the sum of $348 17; or if that relief should be denied, then that Delafield should be made a co-defendant.
    The allegations of the complaint were, that one Philip H. Searle, had sold to the defendants a quantity of logwood of the value of $500, and for a valuable consideration had transferred and assigned to the plaintiffs, his claim against the defendants, arising from the sale. That the defendants, in consideration of this assignment, had expressly promised the plaintiffs to pay them the price or proceeds of the logwood which it was averred amounted to the sum of $499 11, for which sum, the defendant having refused to pay it upon request, judgment was demanded. 4
    The affidavit of one of the defendants upon which the motion was founded stated, (inter alla) that one Henry Delafield, a person not a party to the action, and without collusion with the defendants, demanded of them the proceeds of the logwood, alleging that it belonged to him, and that Searle had not the possession as owner, nor any right or authority to sell the same, or assign the price thereof.
    The affidavits which were read on the part of the plaintiffs in opposition to the motion, stated the following facts: That they had sold to Searle for cash, a quantity of stoves, and that he gave them his check for the price, the payment of which was refused. That he then gave them an order on the defendants for a definite sum as the price of the logwood. That the defendants declined to pay the order, on the ground that the logwood had not yet been fully weighed, and that it was not certain that the price or proceeds would amount to the sum mentioned, but that they expressly promised to pay to the plaintiffs the whole proceeds when ascertained, provided the plaintiffs would obtain from Searle a general order or assignment of his claims. That such an assignment which was set forth, was accordingly obtained, and that the plaintiff relying upon it, and upon the promise of the defendants, had omitted to obtain from Searle, who is now insolvent, a return of the stoves sold to Mm, as they otherwise might aiid would have done.
    
      D. D. Lord, for the defendants,
    and for II. Delafield. I. The case is not at all varied by the plaintiff’s affidavits, the facts set forth being wholly insufficient to prove that the defendants have made themselves liable to the plaintiffs in all events for the price of the logwood, the promise they gave amounting in reality to no more than a promise to pay to the plaintiffs, as assignees, the sum to which Searle as owner of the logwood might finally appear to be entitled; and as to the allegation that they had sustained damages from their reliance on the promise of the defendants, it is too vague and uncertain to merit attention. Aud were it otherwise, the defendants, as the nature of the relation between the plaintiff and Searle was not disclosed to them, cannot be responsible. As the plaintiffs therefore can only maintain the action as the assignees of Searle, they stand in the same situation as Searle himself, and consequently their right to recover depends solely upon the question whether he or Delafield, as the true owner of the logwood, is entitled to the proceeds of the sale. These proceeds may justly be considered a fund of which the defendants were merely the depositories, and as they are willing and have offered to pay the fund into court, they are entitled to be discharged. The case is plainly one of those to which the provisions of the Code apply, and in which an interpleader has always been granted.
    II. If the defendants are not to be discharged, the application of Delafield to be made a party to the action by a proper amendment, cannot be denied. The action being brought for a particular fund is an action for the recovery of personal property, within a fair interpretation of the words of the Code. Delafield has, or claims to have an interest in the subject of the action, and to enable him to assert his rights, he ought to be made a co-defendant. If this cannot be claimed as Ms positive right, it would at least be a fit exercise of the discretion of the court.
    
      J. T. Williams, for the plaintiffs.
    I. The material question 
      is, whether the defendants shall be discharged and Delafield be substituted as the sole defendant; and to grant this would be a hazardous and unequitable exercise of the discretion of the court. It would be unjust to release the defendants from a positive contract, by their reliance on which, the plaintiffs have lost the remedies which, as against Searle, they would otherwise have possessed and exercised. (Crawshay v. Thornton, 7 Simons, 391, and Pearson v. Cardon, 4 Simons, 218). It is a fatal objection to the application of the defendants that they dispute the amount of the plaintiff’s claims. The plaintiffs demand a judgment for $499 11, and the defendants offer to pay into court only $348 17. (Chamberlain v. O’Connor, 8 How. Pr. R. 45).
    II. As to the application of Delafield to be made a co-defendant, the court has no discretionary power to grant it. This is not an action for the recovery of real or personal property, and it is an abuse of language to call it so. It is an ordinary action for the recovery of a debt, not of lands, nor of specific chattels. (Judd v. Young, 7 How. Pr. R. 79).
   Dtjbb, J.

I. Taking into consideration the facts set forth in the plaintiff’s affidavits, and which I think might properly be given in evidence to sustain the averment in the complaint, of a special promise, I am clearly of opinion that the motion for the discharge of the defendant, and the substitution of Delafield as the sole defendant, must be denied.

An order of interpleader under § 122 of the Code, can only be properly made when the whole controversy turns upon the right of property, that is, upon the question whether the plaintiff in the suit or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or other property for which judgment is demanded. When the plaintiff insists as in the present case, that the defendant by a personal contract or otherwise, has rendered himself liable in all events for the debt sought to be recovered, and is precluded from setting up the title of a third person as a bar; it would be manifestly unjust to make the order, since in the language of Lord Cottenham in Crawshay y. Thornton, (2 Mylne & C. 1), it would deprive the plaintiff of his legal remedy, and might involve the sacrifice of his legal rights without affording him any equivalent or compensation.

Applying these remarks to the case before me, it is only in an action against the defendants themselves, that the question whether they have not rendered themselves absolutely liable to the plaintiffs for the price of the logwood can be so determined as to secure to the plaintiffs the right of appeal to the court of ultimate jurisdiction. To deprive them of this right by putting an end to this action in its present form, and substituting Delafield as the sole defendant; it seems to me would be an arbitrary and unwarrantable exercise of judicial power. As against Delafield, the plaintiff could only recover upon proof that Searle was the owner of the logwood, or had full authority to make the sale, and the question whether even upon the supposition that Searle was not the owner, and had no such authority, the defendants were not bound to pay to-the plaintiffs the stipulated price, would not be determined at all. And thus the plaintiffs might be deprived of the judgment, to which, had the action retained its original form, they would have been entitled. Whether if the plaintiffs shall succeed upon the trial in establishing the facts set forth in their affidavits, the defendants will be precluded from setting up the title of Delafield as a bar to a recovery, is a question upon which I am not to be understood as expressing or intimating any opinion. I only mean to say that as the question of the absolute liability of the defendants is distinctly raised by the complaint and the affidavits, I have no right to decide it upon this motion, and thus to prevent its decision in the-regular progress of the cause.

The provisions in § 122 of the Code, are founded upon the English Statute 1 & 2 Will. IV. c. 58, and hence the decisions upon that statute have with great propriety been referred to. They appear to have settled the rule, that it is only when no other question than the right of property is meant to be litigated, that an interpleader can justly be allowed. When it is alleged that the person who seeks to be discharged as a, mere depositary or stakeholder, is liable upon' any ground independent of the title, the application must be denied. Crawshay v. Thornton, (7 Sim. 391, S. C. 2 Mylne & C. 1). Pearson v. Carden, (2 Russ. & M. 606). Palorni v. Campbell, (3 Dowl. N. S. 397), and Lindsay v. Barron, (6 C. B. R. 291), differ in circumstances from the case before me, but in principle are ■not to be distinguished. As they appear to me to have been rightly decided, it is my duty to follow them.

. Nor is it only upon the ground that has been stated that I must refuse, by substituting Delafield, to discharge the defendants. Had this action been brought by Searle himself, or by the plaintiffs merely as assignees, I must still have said that the facts do not exhibit a case for an interpleader under a just construction of the Code. The plaintiffs seek to recover a debt arising upon contract, but Delafield is not a third person, nor a party to the suit making, a demand for the same ■ debt,” as the words of the Code require him tobe, to justify an order for his substitution. As he denies that Searle had any -authority to make the sale, his demand as owner is for the logwood itself, or its value, which may be greater or less than the.price agreed to be paid; and at any rate is not a debt of which, as such, he may compel the payment. The words of the English statute do not at all differ in meaning from those of the Code, and the Court of Exchequer has held that by their necessary construction, they preclude a purchaser of goods from calling his vendor to interplead with a third person claiming to be the owner. And one of the learned judges -truly observed, that independent of the statute, an interpleader, in such a case had never been allowed in a court of equity. (Stancy v. Sidney, 14 Mees. & W. 800).

The provisions of the Code, like those of the English statute, were certainly not designed to introduce new cases of inter, pleader, but merely to enable defendants in cases where an interpleader is proper, to relieve themselves by a summary proceeding, from the delays and expense of a formal action.

H. The alternative motion that Delafield may be made a co-defendant, must also be denied. This is not an action for the recovery of real or personal property within the meaning of the Code. He has no interest that can be endangered or • affected by any judgment that the plaintiffs may obtain, nor is his presence necessary to a complete determination of the controversy. As owner of the logwood, he must seek his remedies against the defendants, or those into whose hands the property may have passed.

The objection that the defendants have offered to pay into court a less sum than is demanded by the complaint, if other objections could be removed, I should by no means regard as fatal. I should then have no difficulty in directing a reference, or an issue for ascertaining the sum, which as the price of the logwood, the defendants were bound to pay.

I remark in conclusion, that unless the defendants have rendered themselves absolutely liable, which is strenuously denied by their counsel, I do not see that they can be prejudiced by the denial of this motion. If the sale made by Searle was fraudulent and void, the title of the true owner, according to' the decision of this court in Bates v. Stanton, (1 Duer, 79), may be set up by them as a full defence.

I shall deny both motions without costs, and with liberty to the defendants, if they shall be so advised, to commence a regular action for compelling an interpleader.  