
    James Baker, Resp’t, v. Edward F. Brown, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 3, 1892.)
    
    Interpleader—Former adjudication.
    The complaint in an action of interpleader alleged the levy of an attachment upon the interest of a legatee in an estate held by plaintiff as executor, the recovery of judgment in the action in which it was granted, and a partial payment by him on the execution issued thereon; that thereafter he accounted and a certain sum was directed by the surrogate to be paid to the administrator of said legatee; that defendant claims said sum as assignee of the administrator, and the sheriff also claims it under the attachment. and asked that they interplead. Held, that there having been an adjudication by the surrogate’s court as to the persons to whom this sum was to be paid, it was binding on plaintiff and he could not seek an interpleader.
    Appeal from judgment and order overruling demurrer interposed by the defendant Brown to a complaint in an action brought to interplead the defendants.
    
      G. S. Hamlin, for app’lt; A. S. Hutchins, for resp’t.
   Van Brunt, P. J.

The complaint alleges that in or about the year 1882, in an action then pending in the supreme court in which one Joseph E. Dewey was plaintiff and one Harriet 0. Gilbert and another were defendants, an attachment was duly issued out of the supreme court directed to the defendant Peter Bowe, as sheriff of the city and county of New York, directing and requiring him to attach the property of the defendants, which attachment was duly served upon this plaintiff; that at the time of the issuing and serving of said attachment the said Gilbert was interested in the estate of one James Baker deceased, as one of the legatees under his will, and that at that time there was in the hands of the plaintiff certain moneys and property to which she was entitled as such' legatee, which moneys and property were the property attached; that thereafter in March, 1886, Dewey duly recovered a judgment against the defendants Gilbert and another for the sum of $3,758.23, which was duly docketed and an execution duly issued directed to the sheriff, which execution was duly served upon the plaintiff, who thereupon paid to said sheriff, in partial satisfaction of said judgment, the sum of $691.64, being the amount of money forming part of said estate then in his hands to which said Gilbert was entitled as legatee, and that the said attachment has never been vacated by the cancellation thereof, nor has the interest of said Gilbert in the estate of James Baker, deceased, been released from the operation thereof; that afterwards and before the final accounting of the plaintiff as executor, the said Gilbert died, and one H. 0. Ditmar was duly appointed administrator with the will annexed of said Gilbert, by a court having jurisdiction thereof in the county of Fond du Lac, in the state of Wisconsin, and thereafter upon the application of said Ditmar ancillary letters of administration were duly issued to said Ditmar by the surrogate of the city and county of New York.

The complaint further alleged that on the 24th of March, 1891, the plaintiff, as sole surviving executor and trustee of said Baker, deceased, made and filed in the office of the surrogate of the city and county of New York his final account, and that thereafter such proceedings were had that an order was made and entered in said court whereby his accounts as such executor and trustee were finally settled and allowed, and in and by said order it was decreed that out of the moneys then remaining in his hands as such executor the sum of $589.76 should be paid to said Ditmar, as administrator with the will annexed of said Gilbert, deceased.

The complaint further alleged that the defendant Edward F. Brown claims said sum as assignee of said Ditmar, and that for the purpose of enforcing payment to him of said sum has caused to be issued out of the surrogate’s court an execution directed to the sheriff, etc., requiring him to levy and collect the same out of the property of the plaintiff in this county.

The complaint further alleges that the defendant, Peter Bowe, as late sheriff, etc., to whom said warrant of attachment was issued and directed, also claims the said sum of $589.76, and demands that the same shall be paid to him upon the execution issued to satisfy the aforesaid judgment in favor of said Dewey.

The complaint then alleges that the plaintiff is ignorant of the respective rights of the defendants, has no claim upon such money, and is ready to deliver it to such persons as the court shall direct, and that the action has not been brought by collusion with the defendants, and prays judgment that defendants be restrained by injunction from taking any proceedings against plaintiff in relation thereto; that the defendants be required to interplead, and that the plaintiff be permitted to pay the money into court, and upon payment thereof into court he be discharged from all liability.

To this complaint the defendant Brown demurred, upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It is urged upon the. part of the respondent that there being rival claims to the fund, and the respondent being liable to be doubly vexed, and in danger of double payment, and himself making no claim to the fund in dispute, a proper case for an interpleader is presented.

This undoubtedly would be true had it not been adjudicated by a. court of competent jurisdiction as to how the money in the hands of the plaintiff as executor and trustee should be paid. Upon an accounting before the surrogate, with the attachment and execution held by the defendant Bowe existing, an adjudication has been made that the executor pay to the administrator of Gilbert, deceased, the said sum of money.

Under these circumstances, we do not see how a bill of inter-pleader can lie. If the executor intended to dispute the right of the administrator of Gilbert to receive the money in question, he was bound to present the claim there and have it adjudicated upon. He was aware of the circumstances of this attachment, the fact of its existence, of its levy, of the claim made by the sheriff, and these facts he should have presented to the surrogate in order that the surrogate might have made the proper order. But, instead of that, as far as this record shows, a decree has been permitted to be entered directing the payment of this money, and the surrogate has directed an execution to issue for its collection.

It seems to us that it is too late after judgment and execution to ask for an interpleader; and that is the position of the plaintiff in this action. It does not appear that any attempt whatever was made upon the part of this executor to bring in the other claimant of the fund adjudged to belong to the administrator of Gilbert. But with full knowledge of the facts, and of the claim made, upon the part of the sheriff to this fund, in hostility to the representatives of Gilbert, he has permitted the surrogate to make his decree directing its payment to such representatives. We are of opinion therefore that there having been an adjudication as to the persons to whom this share was to be paid, it is binding upon the plaintiff, and he cannot now seek an interpleader.

The judgment and order appealed from should be reversed, and the demurrer sustained with leave to the plaintiff to amend his complaint upon payment of the costs of this appeal and of the court below.

Barrett and O’Brien, JJ., concur.  