
    B. Altman & Company, Appellant, v. Ada Comstock and Leo Ornstein, Respondents.
    First Department,
    December 18, 1914.
    Injunction — action of interpleader by bailee against whom replevin actions are pending — injunction pendente lite to restrain prosecution of replevin actions granted.
    Where, in an action of interpleader brought by the bailee of certain property, it appears that there is one action of replevin pending against the plaintiff by a party claiming that the property was stolen from him, and another action of replevin by the party who delivered the property to the plaintiff, in which the plaintiff in the first replevin action is made a defendant, a prima facie ease is presented, and a motion by the plaintiff for a temporary injunction restraining the prosecution of the replevin actions should be granted.
    Appeal by the plaintiff, B. Altman & Company, 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 5th day of November, 1914, denying the plaintiff’s motion for a temporary injunction.
    
      Solomon Hanford, for the appellant.
    
      Henry J. Goldsmith, for the respondent Comstock.
    
      Wales F. Severance, for the respondent Ornstein.
   Laughlin, J.:

This is an action of interpleader. On the 28th day of April, 1914, the defendant Comstock delivered certain furs to the plaintiff to be stored. Both defendants claim the furs, and have commenced replevin actions to obtain them. This action was subsequently brought; and the motion was made for an injunction to restrain the prosecution of the replevin actions.

After the plaintiff received the furs for storage from the defendant Comstock, and on the 22d day of May, 1914, the defendant Ornstein, through his attorney, notified the plaintiff that he claimed the furs. The plaintiff acknowledged the receipt of that notice, and called upon Ornstein “to establish” his claim without delay. Thereafter, and on the ninth day of June, Omstein formally demanded possession of the furs, claiming that they had been stolen from him, and on the next day he commenced a replevin action therefor in the Supreme Court. That action was pending when this action was brought. The affidavits in the record show that on the twentieth day of August or the fourteenth day of September the defendant Comstock brought an action against the plaintiff for the conversion of the furs. That action, however, was discontinued on the fifteenth of September, and thereupon she brought an action in replevin in the Municipal Court to recover the furs, joining Omstein as a defendant. It is claimed on the part of the respondent Comstock that this was pursuant to an arrangement with the attorney for the plaintiff, and that pursuant thereto she procured a release to the plaintiff from Ornstein and a direction in writing by him to the plaintiff to deliver the furs to her; but it appears that Ornstein has repudiated the release and direction for the delivery of the furs io the respondent Comstock.

Doubtless the motion was denied on the theory that the replevin action brought by the defendant Comstock, in which Ornstein is joined as defendant, will determine the controversy. There is, however, no certainty as to that, for the action may be discontinued as to Ornstein. Moreover, if the ownership of the furs could be conclusively adjudicated in that action, there is no certainty that it will be tried first, and it may subject the bailee to damages and costs therein as well as in the other replevin action which if tried first will render it ineffectual. It is not claimed that the plaintiff herein had an adequate remedy by motion in either replevin action under section 820 of the Code of Civil Procedure, or if it did, that such remedy would be exclusive. The pending negotiations may excuse it from having moved before answering in the first replevin action if it should have moved therein, and as it was joined with the other claimant in the second replevin action it may not have had the right to move to surrender possession and be relieved therein. It has often been stated in judicial opinions that the remedy by motion is a substitute for an action of interpleader (Stevenson v. N. Y. Life Ins. Co., 10 App. Div. 233; Burritt v. Press Pub. Co., 19 id. 609; Helene v. Corn Exchange Bank, 96 id. 392; Wenstrom Elec. Co. v. Bloomer, 85 Hun, 389); but it has recently been declared by the Court of Appeals that it is a concurrent and more simple remedy. (Pouch v. Prudential Ins. Co., 204 N. Y. 281.) But since this point has not been argued and it is not clearly presented we do not deem it necessary to express a decided opinion thereon or to foreclose the trial court from deciding whether the full protection of the rights of plaintiff require the aid of a court of equity, for we think that plaintiff, who is merely a bailee of the furs, sufficiently shows that it cannot deliver them to either claimant without jeopardy, and it offers to deposit them as the court may direct, and shows that there has been no collusion between it and either claimant, and presents, prima, facie, a case for interpleader (Beebe v. Mead, 101 App. Div. 500; Ball v. Liney, 48 N. Y. 6; Dorn v. Fox, 61 id. 264; Crane v. McDonald, 118 id. 648; Bassett v. Leslie, 123 id. 396; Pouch v. Prudential Ins. Co., supra), and for staying the prosecution of the replevin actions which is the only question now presented for decision.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Clarke, McLaughlin, Scott and Hotchkiss, JJ., concurred.

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