
    Sickles, Sheriff, v. Wilmerding et al.; Sullivan v. Same.
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    1. Interpleader—When Permitted.
    Actions by a sheriff holding executions against the property of certain debtors, and by a receiver of the property of the same debtors, brought against the same defendants to recover proceeds in their hands of sales of goods consigned to them by such debtors, are actions “upon a contract, ” within Code Civil Proc. N. Y. § 820, providing for an interpleader in such an action by an order substituting for the defendant “a person not a party to the action, ” who “makes a demand against him for the same debt or property. ”
    2. Same—Practice.
    In such cases, the action of the sheriff having been first instituted, it was error to cause him to be substituted as defendant in the junior action, the plaintiff in which should have been brought in as defendant in the sheriff’s suit.
    Appeal from special term, New York county.
    Action by Daniel B. Sicilies, sheriff, etc., balding executions against the insolvent firm of Bosenberg & Baker, against John C. Wilmerding and others, composing the firm of Wilmerding, Morris & Mitchell, to recover certain property or its effects, in the hands of the defendants belonging to said execution debtors. And also action by David A. Sullivan against the same parties, claiming the same property, or its effects, as receiver of said insolvent firm of Bosenberg & Baker. The sheriff appeals from an order made in the last-mentioned case, discontinuing the sheriff’s action, and substituting him as defendant instead of John C. Wilmerding and others, in the suit by David A. Sullivan, receiver. The motion upon which such order was entered was made on behalf of the defendants Wilmerding, Morris & Mitchell, on notice to the plaintiffs in both actions, upon the complaint in the second action and affidavits showing the commencement of the two actions, and that they were brought for the recovery of the same sum of money, the amount realized by defendants from the sale of certain goods consigned to them for sale by the firm of Bosenberg & Baker, and that the respective claims of the plaintiffs were made without collusion with said defendants, and that said defendants had no interest therein except to pay to the right party, which question they could not safely determine. Before and at the time of the commencement of these actions the defendants were auctioneers and commission merchants. On March 7, 1890, they had received from the firm of Bosenberg & Baker certain goods to be sold by them on commission for and on account of the said firm of Bosenberg & Baker. Under the agreements under which such goods were consigned the defendants were to sell such goods, and, after deducting their commissions, expenses, and advances from the amount realized from such sales, pay over the balance to the firm of Bosenberg & Baker. The defendants had made advances on the goods so secured to Bosenberg & Baker at or about the time the same were consigned to them. On April 1, 1890, the sheriff claims to have made a levy upon the goods in the possession of defendants by virtue of certain executions issued to him upon judgments recorded against the said Bosenberg & Baker. Afterwards, and on April 11, 1890, the defendants sold the goods, and the proceeds were due and payable to Bosenberg & Baker on April 21, 1890. It is admitted by both complaints that the amount of the balance realized from the sale, after deducting the defendants’ commissions, expenses, and advances, was the sum of $856.11. This the defendants held to the credit of Bosenberg & Baker. On April 29, 1890, an order for the examination of the defendants as third parties indebted to the firm of Bosenberg & Baker was served upon them. Under such order the defendants were examined at length, and on June 6, 1890, a receiver, David A. Sullivan, was appointed of the assets and effects of said Bosenberg & Baker. On June 9, 1890, the sheriff commenced an action by the service of a summons without any complaint against said defendants to recover the said sum of $856.11. The complaint which was afterwards served claimed this amount by reason of the alleged levy. On June 13, 1890, the receiver also commenced an action against said defendants by the service of a summons and complaint to recover the same sum of money. The sheriff alone opposed the motion for an interpleader, and is the only appellant therefrom. Code Civil Proc. N. Y. § 820, provides: “A defendant against whom an action to recover upon a contract or an action of ejectment or an action to recover a chattel is pending may at any time before answer, upon proof, by affidavit, that a person not a party to the action makes a demand against him for the same debt or property, without collusion, apply to the court upon notice to that person and the adverse party for an order to substitute that person in his place, and to discharge him from liability,” etc.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Hays <£• Greenbaum, (Daniel P. Hays, of counsel,) for appellant. Mitohell <& Mitohell (W. Mitohell, of counsel) and Frederick li. Kellogg, for respondents. -
   Per Curiam.

It seems to us beyond question that both the actions which are brought against the defendants Wilmerding, Morris & Mitchell come within the definition of actions upon contract, and the right to recover depends upon priority of liens, and the only controversy arises between Sickles as sheriff and Sullivan as receiver in respect to such priority. This being the case, the defendants have' no interest in the controversy, and should be relieved upon paying the subject-matter of the controversy into court. We think, however, that the court below erred in making the sheriff defendant in the receiver’s suit. The sheriff’s action was first commenced; and,-the receiver having subsequently commenceci an action, if any interpleader was made, he should be brought in as defendant in the sheriff’s suit. We think, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, to abide the final event of the action, and an order of interpleader entered in the action of the sheriff bringing in th% receiver as defendant, and discharging Wilmerding, Morris & Mitchell upon payment of the money into court.  