
    Isaac Cohen, Plaintiff, v. Max Cohen, Respondent.
    (City Court of New York, General Term,
    May, 1901.)
    Interpleader.
    A defendant cannot procure ""an order of interpleader, upon allegations that another person claims the same money as the plaintiff and for the same services, where the defendant does not admit liability to either party, nor shows that the claimant has any foundation for his claim, or makes it appear that it would be hazardous for the defendant to determine which party he should pay, and particularly where the claimant denies that he claims the fund and alleges that he has commenced an independent action against the defendant for-services of the same nature.
    
      Appeal from an order in favor of the defendant, interpleading and substituting one Simon Sindeband in the place and stead of the said defendant in the above-entitled action.
    Joseph Wilkenfeld, for appellant.
    Davis & Kaufmann (Edward Kaufmann, of counsel), for respondent.
    Hyman Cohen, for plaintiff.
   Per Curiam.

The plaintiff seeks to recover in this action the sum of $255 for commissions which he earned on the sale of certain real estate belonging to the defendant. The defendant, before answer was due, moved on affidavit and notice that one Simon Sindeband be substituted in his place herein, and that affidavit, as far as material, is as follows: That this action is brought to recover the sum of two hundred and fifty-five dollars * * * for alleged services rendered as a real estate broker on the sale of real estate known as Uos. 240 and 242 Clinton Street in the City of Eew York. Deponent has received notice from one Simon Sindeband, that he claims to be entitled to the commission on the sale of said property for alleged services rendered by him to deponent, who was the owner of said property, and that he claims to be entitled to said sum of money sued for by the plaintiff in this action. Deponent further says that the claims of the plaintiff herein, Isaac Cohen, and of the adverse claimant, Simon Sindeband, have been, made without collusion of the defendant with them or either of them, and that deponent, the defendant in the above-entitled action, has no interest in the aforesaid sum claimed by the-plaintiff herein, as well as by the adverse claimant, except to deliver the same to the person lawfully entitled thereto, and that deponent cannot safely determine as to which- of said claimants the said sum of money should be delivered; that he is ready and willing to deliver the said sum to such person, or deposit the same in such place as the court may direct.” The appellant, Sindeband, submitted an affidavit in opposition to the motion, setting forth that he does not claim the same fund as alleged in defendant’s affidavit, and that prior to the motion he had commenced an action against the defendant herein, to recover the amount of his claim, which was also for broker’s commissions.

Construing these affidavits in the light of recent decisions, we are unable to see how the order of interpleader can stand. The most that can be claimed to be established is that Sindeband has made a demand for broker’s commissions on the sale of the property in question; whether or not there is any foundation for such a claim the moving papers fail to show. This is fatal under the authority of Stevenson v. New York Life Ins. Co., 10 App. Div. 233; Roberts v. Vanhorne, 21 id. 369. Furthermore defendant does not admit a liability to either plaintiff or Sindeband for the commissions in question, and if for no other reason, his application should have been denied. Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234. But the papers are faulty in other respects. In Wells v. National City Bank, 40 App. Div. 498, 501, it was held: That to authorize an order, it is not sufficient that a claim has been presented against a fund already claimed by another, but that it is necessary for the moving party to prove that the claim has some reasonable foundation or that the stakeholder cannot, without hazard, determine to which of the claimants he should pay the fund. What is required upon the subject is proof of some kind and not naked assertions.” See also Steiner v. East River Savs. Inst., 60 App. Div. 232. No facts are alleged herein which make it appear that it would be hazardous for the defendant to determine to which of the parties he should pay the money in question. For all that appears the plaintiff and Sindeband may have separate and distinct claims for services rendered under contract with defendant, and if such is the case interpleader cannot be granted. McCreery v. Inge, 49 App. Div. 133.

For the reasons stated the order should be reversed with tén dollars costs and disbursements, and the motion denied, with ten dollars' costs, with leave, however, to renew the application on other papers.

Present: Fitzsimons, Ch. J., Delehanty and Schuchman, JJ.

Order reversed, with ten ddilars costs, and motion denied, with ten dollars costs, -with leave to renew application on other papers.  