
    Carl T. Burritt, Appellant, v. The Press Publishing Company, Respondent.
    
      Interpleader — what must be shown on an application for — not necessa/rily that the new claimant will probably be successful — oi'der refused where the new claim is merely colorable.
    
    The moving party on an application for an order of interpleader must, besides: showing the fact that two persons claim against him the same thing, prove-that he has no beneficial interest in the thing; that the claim made renders its. position, in paying either claimant, hazardous to the extent of creating a reasonable doubt as to the party entitled thereto, and that there is no collusion between the moving party and either .of the claimants; there is, however, no-authority for the position that it must appear that the claimant interposing the demand, and creating the doubt, will probably be successful.
    The application should be denied where the claim interposed appears to be merely colorable and where that claimant, although served by the plaintiff in the action with an order'and a subpoena, refused to be examined, as the defendant should not be allowed to procure the substitution of a possibly irresponsible person unless it makes some proof that such person has an existing right to the thing in dispute.
    Appeal by the plaintiff, Carl T. Burritt; from an order of the Supreme Court, made at the Westchester' Special Term and entered in the office of the cleric of the county of Westchester on the 17th day of February, 1897, providing for the discharge of the defendant in the action, and the substitution of Daniel Corcoran as the defendant therein, and also from an order bearing date the 19th day of April, 1897, and entered in said cleric’s office, resettling said order.
    
      Ralph S. Rounds, for the appellant.
    
      Ralph G. Miller, for the respondent.
   Hatch, J.:

In August, 1896, there was stolen from the office of the defendant a printed list called “ Subscription and newsdealer proofs.” The defendant thereupon offered a reward of $500 for information leading to the arrest and conviction of the parties engaged directly or indirectly in the theft. Thereafter, as is averred in the complaint, one John Cook furnished the defendant with information leading-to the arrest and conviction of Joseph W. Meehan for the offense.. The reward not being paid, Cook assigned his claim to the plaintiff,. who thereupon brought this suit to recover the amount. About a month after the service of the summons, and complaint, and' after defendant’s time to answer had been extended, the defendant moved to interplead one Daniel Oorcoraii in its place.and stead as defendant, •The moving affidavit sets out that Corcoran has made a demand upon the'defendant for the reward, claiming that he furnished the information which.led to the arrest and conviction of the .offender, and this is accompanied by Corcoran’s written claim to the reward, notice Whereof was given by the defendant to the plaintiff’s attorneys.. The affidavit further states that the-claim of Corcoran has been made: without collusion of this defendant with, either claimant; that the defendant has no interest in such-, controversy except to pay the money to the rightful claimant, and it, therefore, asked to be allowed to pay the money into, court and be discharged from all liability to either, person. '

Section 820 of the Code of Civil Procedure, which governs applications of this character, is a. substitute for the old.action of interleader, the rules of which had. become fairly well settled. Modern decision as to what must be made to appear in order to entitle the party, making the application to the benefit of the section, is in. a very inharmonious condition. It was held.in the following, cases,. Bowery National Bank v. The Mayor (4 N. Y. St. Repr. 565); Dreyfus v. Casey (52 Hun, 95) and some others not necessary to be referred to, that it was only necessary for the moving party to make plain to the court that a person not a party to the action, makes a demand for the same debt without collusion "with him, in order to avail himself of this provision of the Code. In the case last cited it was said that a distinction, was created between the former action of interpleader and one under the provisions of the Code, resting upon the reason that in the former it was necessary to show that the claim interposed was .substantial and would .probably be successful, while in the latter such proof was not necessary. It is quite" evident that if this basis of distinction exist in fact, then the moving papers in this case are sufficient to sustain the order appealed from. But we are unable to. see the basis for any such distinction. Both the old action of interpleader and the Code provision have for their object the same result, which was to. relieve a party from contesting, a claim in which he had no interest, and because the practice’ has been simplified, which is all that the Code section accomplishes, furnishes no reason for dispensing with such proof as was formerly required in order to entitle a party to relief. A more difficult task, however, is to establish the fact that in the former action of interpleader it was essential to aver and prove that the claim, interposed was substantial and would probably be successful. In Atkinson v. Mantes (1 Cow. 691) it was held that the essential elements of a bill of interpleader was to show: (1) That two or more persons made a claim against the complainant ; (2) for the same thing; (3) that the complainant has no beneficial interest in the thing claimed; (4) that determination cannot be made as to who is entitled without hazard to the complainant, and by affidavit that there was no collusion between the complainant and any of the claimants. To this the court adds: “It.may unquestionably be denied by the answer, for the purpose of showing fraud nr collusion on the part of the complainant, and I humbly conceive, for no other purpose.” The doctrine of this case seems to leave the matter to rest upon substantially the same ground as was applied in the Dreyfus case to the Code provision. Such seems to have been the view of the court in Nassau Bank v. Mandes (44 Hun, 55). The full extent to which the pleader was required to aver in his bill of interpleader, and show upon the. trial, was that he is in ignorance of the rights of the respective claimants or that there was some doubt in fact to which party the debt belonged, so that he could not safely pay without hazard to himself. (Shaw v. Coster, 8 Paige, 339; 2 Daniell’s Ch. PI. & Pr. 1561 et seq. / 3 Pom. Eq. Juris. §§ 1322-1326.)

We find no authority for holding that in such a suit it was essential to show that the claim interposed would probably be successful. The matter seems to turn upon a solution of the question whether the claim made renders the position of the moving party hazardous to the extent of creating a reasonable doubt; and in order to solve this question the moving papers should establish such a case. (Nassau Bank v. Yandes, supra; Mars v. The Albany Savings Bank, 64 Hun, 424; Williams v. Ætna Life Ins. Co., 8 N. Y. St. Repr. 56Y; Stevenson v. New York Life Ins. Co., 10 App. Div. 233 ; Windeeker v. Mutual Life Ins. Co., 12 id. 73.)

It is strenuously insisted that Crane v. McDonald (118 N. Y. 648) is opposed to this view. We do not so read the case. The court there did no 'more than state the rule applicable to the old action interpleader, and apply it to a case which showed a claim resting; upon a reasonable foundation where a fair doubt existed. And such: also, for the most part, will be found to be the case with the other' authorities cited and relied upon by the respondent. That this rule ; we have announced is a correct exposition of the law is decided in Baltimore & Ohio R. R. Co. v. Arthur (90 N. Y. 234, 238).

Tested by this rule the affidavit seems defective. -.The can be claimed to be established is that Corcoran. has made a claimi to the - award;' whether well or ill founded is not made to appear byi anything in the moving papers. It is quite clear that the defendant);. is possessed of sufficient information upon this point to have placed) before the court sufficient of the facts to create a ' reasonable- doubt if such facts. existed. The defendant must know from whom and under what- circumstances it received the information leading to the arrest and conviction 'of the offender, and is, therefore, able to show what connection Corcoran had, if any, with such result.. No fact! whatever in this connection is stated.-- The opposing.affidavits to establish that Corcoran had nothing to do with the detection of the offender or with the information; resulting in. his conviction, and’ plaintiff produces affidavits purporting to- contain statements, of Coi - coran to that effect, and seems to have tried, if not exhausted hikj remedies in an attempt, to procure Corcoran’s affidavit, which, the) latter refused to make or to appear before a referee for examination! upon that subject, although served with, ari order of the court .and aj subpoena, commanding him to do so. Under such cirCumstances,[ we think that the defendant has failed tó show any reasonable; ground of liability to Corcoran, and that its hazard in that connection is not made to appear. The defendant ought not to be permit-) ted to procure the substitution, it may be, of an irresponsible partyj and thereby subject the plaintiff to costs of a litigation; unless he first-establishes by some - proof an existing right to the reward in stichi claimant. (Willimns v. Ætna Life. Ins. Co., supra.)

The orders should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  