
    Albert A. Jarvis, Resp’t, v. Joseph Benedict et al.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    Interpleader—When order oe proper.
    Plaintiff was employed by defendant Benedict to obtain some property of an estate in which he was interested, and was successful, the executor, on his accounting, being directed to pay a certain sum to Benedict, who had drawn a draft on the executor in favor of a bank, which draft had been accepted by the executor but not paid when this action was brought by plaintiff, who claimed a lien on the fund for his services. Held, that an order interpleading the bankers in place of the executor was properly granted.
    
      Appeal by the defendants from an order of the special term of Monroe county.
    
      Edward Lewis, for app’lts; W. F. Jenks, for resp’t.
   Corlett, J.

In June, 1888, T anny S. Benedict died leaving a will by which she gave her p’".perty to legatees. Joseph Benedict was not one of them. U was a relative of the deceased and as such entitled to a third of - ,e personal property, which the will did not otherwise dispose >L The will was admitted to probate, and the defendant, Her y T. Dunham, was appointed executor. The defendant, Benedict, employed the plaintiff, who was an attorney, to assist him in obtaining some of the property of the deceased The advice of the plaintiff was to the effect that the bequests were invalid. A contest ensued which resulted in favor of the plaintiff’s contention. He claims to have necessarily disbursed in the proceeding $147.87, and that his services were worth $492.76, to recover which this action was brought. He also claimed that there came into the executor’s hands money to the amount of $1,478.28, which belonged to the defendant, Benedict. Upon the final accounting of the executor in September, 1890, a decree was made by that court adjudging that this sum belonged to Benedict and should be paid to him as his distributive share of the estate.

On the 4th day of April, 1890, Benedict drew his draft or order on Dunham, as executor, for the sum of $1,000, payable to the order of A. D. Mather & Co.’s bank. The same was accepted by Dunham, but before the money was paid to the bank this action was commenced, the plaintiff asking for a decree adjudging that he had an attorney’s lien upon the share of Benedict to the amount of $640.63, the alleged value of his services and disbursements. The plaintiff, at the same time, served a notice of the lien upon Dunham and forbid his paying the money to Benedict. Dunham then made a motion which resulted in the order appealed from, which was as follows:

“ On reading and filing notice of this motion, the affidavit of the defendant, Henry T. Dunham, verified on the 3d day of October, 1890, and a copy of the plaintiff’s complaint thereto annexed, and on proof of due service of the notice of motion on the plaintiff, defendant Benedict, and A. D. Mather & Oo.’s bank, .•and after hearing W. F. Jenks of counsel for defendant Dunham, and on reading and filing the affidavits of J. Benedict and Charles W. Mather, and after hearing Mr. E. Lewis for defendant Benedict and for A. D. Mather & Co., and Mr. Gr. F. Yeoman for plaintiff:
“ Ordered, that on payment by the defendant, Henry T. Dun-ham, to the clerk of the county of Monroe of the sum of $1,238.28, within ten days from the entry of this order, less ten dollars costs of this motion, Charles W. Mather and Joshua Mather be substituted as party defendants in this action in place of Henry T. Dunham, and that thereupon said Henry T. Dunham both individually and as executor of Fanny S. Benedict, deceased, be discharged from liability either to the plaintiff herein, or to the defendant Joseph Benedict, or to said A. D. Mather & Co., and that the plaintiff, if so advised, be at liberty within twenty days from the entry of this order to serve upon said substituted defendants, the summons and complaint in this action.
“And it is further ordered that if the said Charles W. Mather and Joshua Mather do not appear and defend this action within twenty days after service of this order, together with a copy of the summons and complaint as aforesaid, the plaintiff may apply on eight days notice for an order that the amount of his claim as stated in the complaint herein may be paid to him from the moneys so deposited, and that the balance of said moneys be paid to A. D. Mather & Co.'s bank.”

The sum named in the order was the amount which remained in the executor’s hands. Dunham held the money in controversy as executor. After the surrogate’s final decree this controversy arose, and the executor was compelled either to pay the money according to the surrogate’s decree or obtain the direction of the court as to what he should do with it. The plaintiff in this action was not a party to the proceedings or decree in the surrogate’s court. Section 820 of the Code of Civil Procedure provides for proceedings such as resulted in the order.

In Crane v. McDonald, 118 N. Y., 648; 30 N. Y. State Rep., 98, it was held that where a person without collusion is subjected to a double demand for money, and it fairly appears that there is a substantial controversy, the person who is holding the fund may resort to interpleader. The plaintiff’s position in this case is analogous. The fact that the surrogate’s court had made a decree before this controversy arose is of no importance. Goodrich v. McDonald, 112 N. Y., 157; 20 N. Y. State Rep., 509.

Such proceedings have often been resorted to and sustained. Dorn v. Fox, 61 N. Y., 264; Dreyfus v. Casey, 52 Hun, 95: 23 N. Y. State Rep., 397.

The order of the special term was properly granted, and must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.  