
    George B. Post, Jr., and Others, Appellants, v. Emily Emmett, Respondent, Impleaded with J. Jaffred Butler, as Temporary Administrator, etc., of Joseph Richardson, Deceased, Appellant.
    
      Interpleader — what right in a fund must he shown on the part of the third party sought to he interpleaded.
    
    Brokers who have in their possession moneys and securities, the proceeds of stocks and bonds deposited with them by a customer as collateral security for a note given by such customer, and indorsed by a third person, since deceased, are not entitled to maintain an action to interplead the maker of the note in whoso name the securities stand, and the temporary administrator of the deceased indorser, where the only evidence that the indorser owned, or had any interest in, such securities, is a claim made by his temporary administrator, supported only by an unverified statement of the grounds thereof, which claim is-explained and rebutted by a verified statement on the part of the customer.
    Appeal by the plaintiffs, George B. Post, Jr., and others, and by the defendant J. Jaffred Butler, as temporary administrator, etc., of Joseph Richardson, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of March, 1899, denying the plaintiffs’ motion for an injunction restraining the defendant Emmett from proceeding with two suits which she had brought against the plaintiffs to recover certain moneys and securities, and for an order allowing the plaintiffs to pay the moneys into court.
    
      
      George W. Wickersham, for the plaintiffs, appellants.
    
      Charles E. Hotchkiss, for the appellant Butler.
    
      Howard A. Taylor, for the respondents.
   Rumsey, J.:

The plaintiffs allege. that they were partners doing business as • brokers in the city of New York, and that during the months of December, 1897, and January, 1898, the defendant Emmett deposited with them, as security for purchases of stocks which they were to make on her account, certain stocks and bonds of the value of about $235,000; that .at the time of the bringing of this action, which was on the 6th of March, 1899, a large portion of these stocks had been sold, and the plaintiffs had in their hands a balance from the sales of about $6,500, and they had also about 800 shares of stock and a few bonds, all of which were claimed by Emmett, who had deposited them. They state further that the defendant J. Jaffred Butler, as temporary administrator of the goods, chattels and credits.of Joseph Richardson, deceased, claimed that all of said securities now in the hands of the plaintiffs, and the money in their hands as proceeds of the securities sold, belonged to Joseph Richardson,, and demands them of the plaintiffs. The complaint 'contains further formal allegations necessary to establish a cause of action for an interpleader, and demands the usual relief asked in such actions.

After the action' was begun, a motion was made for an injunction restraining the defendant Emmett from proceeding with two suits, which she had brought against the plaintiffs herein, to recover the money and securities which' were the proceeds of what she had deposited with the plaintiffs, and allowing the plaintiffs to pay the-money into court and deliver up the securities, so that .the defendants might interplead as to their title. The motion was denied, and from the order denying it this appeal is taken.

The parties do not differ as to the rule of law applicable to these cases, which is neither unsettled nor doubtful. Before one situated as the plaintiffs in this action seem to be, is entitled to au order of interpleader between persons making adverse claims to the securities in his hands, it is necessary to establish, not only that adverse claims are made, but that the .claims have some reasonable foundation, and that there is reasonable doubt whether' the stakeholder^ would be safe in paying over the money. The mere fact that a. claim has been made is not sufficient, but it is necessary to show in addition to that some facts or circumstances which would satisfy the court that the claim made has such facts to support it, or such foundation in law under it, as "would create a reasonable doubt that the holder of the securities would not be safe in paying them over to the person from whom he received them. (Nassau Bank v. Yandes, 44 Hun, 55; Stevenson v. N. Y. L. I. Co., 10 App. Div. 233; Schell v. Lowe, 75 Hun, 43.)

If the party claiming that he is entitled to be protected from art adverse claim comes into court for the protection he is not entitled to it unless he establishes that there is some foundation for the claim or plausibility in it, so that the court can see that he needs protection because he is likely to suffer from the adverse claim if he pays; or delivers the security in hostility to it. (Mars v. Albany Savings Bank, 64 Hun, 424.)

It was formerly held that the mere fact of a claim was sufficient to entitle the stakeholder to an interpleader, but .that rule has been abandoned and. the rule now seems to be settled as stated above. Judged by what is now the settled rule, the plaintiffs’ papers are-entirely insufficient to entitle them to the relief which they ask. The securities received by them from Miss Emmett stood in her name and had been used as collateral security" for a note given by her and indorsed by Joseph Richardson. There was nothing upon their face to show that Joseph Richardson had any title or interest whatever in the securities. Ho evidence is produced that he ever-owned them or that they were bought originally with his money or that in any way he had any interest whatever in them. . Homing is-presented to warrant any doubt on the part of the plaintiffs that the securities belonged to Miss Emmett except a claim by Butler, as temporary administrator of Joseph Richardson, that he is entitled to-them as such administrator, accompanied by an unverified statement, of the grounds of his claim. There is not one word of testimony in the case to sustain this claim, and if the claim had been verified there is nothing, to throw any doubt upon the ownership of these-securities by Miss Emmett. The plaintiffs’ claim is, therefore* ■entirely unsupported. But to add to the strength of the defend^ ant’s contention there is produced on her part her own affidavit, explaining the.circumstances stated in the' unverified claim as to the , foundation of the right of Joseph Richardson, and' showing clearly that the title to the securities was in her and'that they never belonged' to Richardson. In the face of these proofs it is very clear that the claim adverse to. the plaintiffs bailor -is entirely unfounded, and there "is. no reason to apprehend, that they are in any danger' whatever if they pay over the balance in their hands to .Miss Emmett,"from whom they received the stocks, and transfer to her the securities that are left. The order denying the injunction was correct and must be affirmed,, with ten dollars costs and disbursements.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred*

Order affirmed, with ten dollars costs and disbursements.  