
    DREYER against RAUCH.
    
      New York Common Pleas;
    
      General Term, March, 1871.
    Interpleader.—District Courts.—Affidavit.
    Section 122 of the Code of Procedure, as amended in 1849, giving . the right of interpleader, is applicable to actions in the inferior as well as in the higher courts.
    
      The district courts of the city of Now Y.ork possess the power to com pel adverse claimants of the same money or property to interplead, in a proper case.
    
      It seems, that the affidavit upon which the order of interjDleader is based, need not assert ignorance on the part of the defendant of the rights of the respective claimants, but is sufficient if it shows : 1. The existence of an action on contract. 2. Claim, of the money or debt involved, by one not a party to the action. 3. Absence of collusion. 4. Indifference to the claims of the contestants. 5. Want of interest in or claim upon the money involved.
    Appeal by the plaintiff, Herman Dreyer, from a judgment rendered in one of the district courts.
    The defendant, Louis Rauch, being desirous of selling a bakery belonging to him, authorized the plaintiff, Dreyer, the defendant, Frederick Schmitt, and one Christopher Weinz (each of whom was areal estate broker and acting for himself individually), to sell the same, he agreeing to pay to the one who should procure him a satisfactory customer a commission of five per cent.
    On or about January 20, 1870, the bakery was sold to one John Rasp, for thirty-five hundred dollars, which was the sum or price at which each of said brokers was authorized to sell the same.
    The plaintiff claimed that the purchaser was his customer; that the sale was effected through his agency, and that he, therefore, was entitled to the commission, amounting to one hundred and seventy-five dollars, to recover which he brought this action.
    Each.of the other two brokers also asserted that Rasp was his customer, and claimed to be entitled to the commission.
    The defendant, Schmitt, accordingly brought an action .against Rauch in the same court and for the same cause as the plaintiff herein, but the other broker (Weinz) subsequently waived and withdrew his claim.
    On the return day of the summons which was issued in this action, the defendant, Rauch, made a motion that he be permitted to pay the amount claimed with interest, costs, &c., into court; that Schmitt be substituted in his place and stead as defendant in the action, and that he (Rauch), be thereupon discharged from liability to either party.
    This motion was granted on February 26, 1870, and in pursuance of an order made by the justice, the defendant, Rauch, on the same day, deposited said moneys with the clerk of the court, and the defendant Schmitt was substituted in his place, without any exception on the part of the plaintiff.
    The defendant, Schmitt, appeared in the action, and the cause was tried on its merits on March 5, 1870, and on the same day the justice rendered judgment in favor of said Schmitt, whereupon the clerk paid over to him the moneys deposited as aforesaid.
    The plaintiff appealed to this court.
    
      George Carpenter, for the plaintiff, appellant.
    
      A, C. Anderson, for the defendant and respondent Rauch.
    
      T. W. Kearney, for the defendant and respondent Schmitt.
   Loew, J.

By section 8 of the Code, the provisions of that act from sections 69 to 126, both inclusive, are made applicable to actions in all the courts of the State.

That this refers to actions in the district and other inferior courts as well as to those in courts of record, is evident from the fact that the same section declares that the other provisions of the second part of the Code shall relate to actions in the supreme court and the other courts of record, and also for the reason that in the enumeration of the courts of this State in section 9, the justices’ (now district) and other inferior courts are mentioned.

It is quite clear, therefore, that after the passage of the amended Code in 1849, section 122 was applicable to actions in the inferior as well as the higher courts.

If, however, there could be any doubt as to whether the provision in regard to interpleader which was added to that section in 1851, applies to those courts, the same is removed so far as the district courts are concerned by section 48 of the district court act (Laws of 1857, ch. 344, § 48);

That section makes section 64 of the Code of Procedure applicable to those courts, and subdivision 15 of the last named section declares that the provisions of that act (i. e., the Code), respecting forms of action, parties to actions, &c., shall apply to said courts.

Blow the provisions concerning parties to actions are embraced within sections 111 to 122 of the Code, both inclusive. The district courts, therefore, unquestionably possess the power to compel adverse claimants of the same money or property to interplead if the case be a proper one.

It may, perhaps, be doubtful whether this power of compelling parties to interplead extends to persons residing outside of the respective districts over which these courts have jurisdiction; but as the defendant Schmitt submitted himself to the jurisdiction of the court, and appeared in the action without objection, it is not necessary to express an opinion on that point at present.

The question then arises, was the case under consideration a proper one for the exercise of that power ?

I have no hesitation in saying that it was.

The action was brought to recover commissions the amount of which was agreed upon by all parties.

Moreover, each of the claimants insisted that the ' purchaser was his customer ; that the sale was effected through his individual agency or exertions, and each of them demanded the same sum of money from the defendant Rauch. The latter admitted that he was bound to pay one party or the other, and the only point to be determined was to whom the same was to be paid.

The affidavit of the defendant, Rauch, I have no doubt, was sufficient to confer jurisdiction on the court below to make the order of interpleader.

It showed:

1. That an action upon contract was pending against him, in which issue had not been joined.

2. That a person not a party to the action made a demand of him for the same debt or sum of money.

3. That he was not in collusion with said person.

4. That he was indifferent to the claims of either party; and

5. That he himself had no interest in, and made no claim upon, the moneys held by him, but was ready and willing to deposit the same in court, to abide the event of the action.

That, I apprehend, was all that the Code required, or was requisite should appear in the affidavit.

But if, as is contended by plaintiff’s counsel, and some of the authorities seem to hold, it be necessary for a party to show in addition that he is ignorant of the rights of the respective claimants, and does not know to which he can safely pay the money in his hands, then, in my opinion, that clearly appeared from the facts alleged and averments contained in the affidavit.

I do not know of any case, nor has our attention been called to any, which decides that that must be stated in terms.

Respecting the merits of the case, I am unable to agree with plaintiff’s counsel, that the justice erred in deciding that the defendant Schmitt was entitled to the money deposited in court.

Whichever of the two parties was the procuring cause of the sale was entitled to the commission.

It is true, the plaintiff first called the attention of the purchaser to the bakery in question; but, from the testimony returned to us, it appears that that was all he did. It resulted in' no agreement, and the negotiation fell through.

Several months thereafter the defendant Schmitt, without knowing (as appears by his testimony) that Rasp’s attention had previously been called to the said bakery, offered the same to him (Rasp), brought him and the seller together, and finally succeeded in effecting a sale.

Under these circumstances I do not see how it can be fairly claimed that the plaintiff found the-purchaser, or that he was the procuring cause of the sale.

In my opinion the court below was correct, not only in making the order of interpleader, but also in rendering judgment in favor of the defendant Schmitt, and I think the judgment should be affirmed.

Robinson and J. F. Daly, JJ., concurred

Judgment affirmed. 
      
       Present, Robinson, Loew and J. P. Daly, JJ.
     