
    Robert Joseph & Company, Inc., Respondent, v. Myrtle G. Hirsch et al., Doing Business under the Name of Beland Realty Co., Defendants and Third-Party Plaintiffs-Appellants, and Louis Rait, Inc., Third-Party Defendant.
    First Department,
    December 8, 1953.
    
      
      Morton G. Rosenberg of counsel {Herbert Stern with him on the brief; Karelsen, Karelsen, Rosenberg <& Baum, attorneys), for respondent.
    
      Seymour C. Simon of counsel {Dreyer & Traub, attorneys), for appellants.
   Per Curiam.

The circumstances in this case would seem to warrant interpleader. Plaintiff a broker is suing for $5,400 commissions for negotiating a long term lease of defendants’ premises to Louis Rait, Inc. The lease contained a recital that Landlord and Tenant agree that Plaza Realty Company was the sole broker instrumental in consummating the within lease.” The tenant had signed a representation that Plaza was the sole broker, and Plaza had agreed that it had procured the lease and would accept $2,500 for commissions.

It thus appears that there is but one transaction, i.e., the executed lease to Louis Rait, Inc., upon which commissions have been earned. The dispute is whether plaintiff or Plaza earned the same and to what amount. There are no facts presently disclosed that would indicate any likelihood of liability for commissions to both brokers.

Defendants dispute any liability to plaintiff, and dispute liability for more than $2,500 to Plaza. The situation would thus seem to be one comprehended by the second portion of the first sentence of section 287 of the Civil Practice Act, and warrant joining Plaza as codefendant in the action. The defendants should be required to deposit $2,500 to the credit of the action. Plaintiff and Plaza may litigate their right to the said $2,500, and plaintiff may also litigate its right to recover from defendants the balance of $5,400 claimed as full commissions. An amended complaint may be served by plaintiff.

The order appealed from should be reversed, with $20 costs and disbursements and motion granted. Settle order.

Peck, P. J., Dore, Cohn, Callahan and Botein, J J., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted. Settle order on notice.  