
    George F. Bassett et al., App’lts, v. Frank Leslie, Impl’d, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    Interpleader—When action oe will not lie.
    Plaintiff having purchased certain goods of Alcock & Co., arranged with the American Exchange Bank to give its acceptance for the price, and gave the bank their own acceptance. The bank assigned plaintiff’s acceptance to defendant, Leslie, and failed before its own acceptance matured. Actions having been brought by Alcock & Co. for the goods sold, and by Leslie upon the acceptance, this action of interpleader was brought. Feld, that although Alcock & Co. and Mrs. Leslie both claim the same amount of the plaintiffs, the one claims it for goods sold, and the other upon a draft, and it was, therefore, not a case for interpleader.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment sustaining demurrer to complaint.
    
      Joseph A. Shoudy, for app’lts; G. IS. Rushmore, for resp’t.
    
      
       Affirming 32 N. Y. State Rep., 874.
    
   Earl, J.

This is an action of interpleader, and the plaintiffs prayed judgment that the defendants might be decreed to inter-plead touching their several claims, and that the plaintiffs might be at liberty to pay the sum admitted by them to be due into court, and that both defendants might be perpetually enjoined from the further prosecution of actions commenced by them against the plaintiffs. As the ease is presented by the demurrer to the complaint, we must assume that all the facts alleged therein are true.

This under the old chancery practice would have been called a strict bill of interpleader, and to maintain such an action it is necessary to allege and show that two or more persons have preferred a claim against the plaintiff; that they claimed the same thing, whether a debt or a duty; that the plaintiff has no beneficial interest in anything claimed, and that it cannot be determined without hazard to himself to which of the two defendants the money or thing belongs. There must also be an offer to bring the money or thing into court. Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 393; Dorn v. Fox, 61 N. Y., 268 ; Baltimore & Ohio R. R. Co. v. Arthur, 90 id., 234.

Such an action always supposes that the plaintiff is a mere stakeholder for one or the other of the defendants who claim the stake, and the case must be such that he can pay or deposit the money or property into court and be absolutely discharged from all liability to either of the defendants, and thus pass utterly out of the controversy, leaving that to proceed between the several claimants;' and an action of interpleader cannot be sustained where, from the complaint itself, it appears that one of the claimants is clearly entitled to the debt or thing claimed to the exclusion of the other. Mohawk, etc., R. R. Co. v. Clute, supra.

Upon the facts alleged in this complaint it is entirely clear that the plaintiffs are indebted to Alcock & Go. Goods were purchased by them of Alcock & Co., and delivered by the latter in precise conformity with their agreement. It was arranged that Alcock & Co. should procure payment for the goods by means of a draft drawn upon The American Exchange, which was again to be reimbursed by a draft drawn by it upon the plaintiffs. There is no allegation in the complaint that Alcock & Go. took the accepted draft drawn upon the Exchange in payment of their goods, and there can be no presumption, from any facts alleged in the complaint, that they did. It is, therefore, clear that the plaintiffs are indebted to Alcock & Co., and that upon the facts alleged in the complaint they have no defense to the action brought by them for the price of the goods. It is also clear, from the facts alleged in the complaint, that Frank Leslie has no claim whatever against the plaintiffs upon the draft held by her. That draft was drawn by The American Exchange upon the plaintiffs for the purpose of placing it in funds to meet the draft drawn upon it by Alcock & Co., and while it neglected and refused to pay the draft accepted by it, it had no cause of action against the plaintiffs upon the draft accepted by them. Its transfer thereof to Mrs. Leslie was a diversion thereof from the purpose for which it was accepted, and as she took it without parting with any value to apply upon a pre-existing indebtedness of The American Exchange to her, she stands in no better position than it, and can no more compel payment by the plaintiffs of the draft than it could if it had brought an action thereon. There can be no doubt, therefore, that upon the facts alleged in the complaint the plaintiffs have a perfect defense to the action brought against them by Mrs. Leslie.

Upon the facts alleged there is no controversy between Alcock & Co. and Mrs. Leslie. They claim payment for the goods sold' by them to the plaintiffs. Mrs. Leslie claims payment of the draft drawn by the American Exchange upon the plaintiffs and accepted by them. Alcock & Co. therefore have nothing to litigate with her, and have no interest in her controversy with the plaintiffs. They are in any event, upon the facts alleged, entitled to payment for the goods purchased of them by the plaintiffs, and no litigation between them and her could in any way affect their rights to such payment.

If Mrs. Leslie claims precisely what is alleged in the complaint her claim is good for nothing, and she cannot recover upon the draft against these plaintiffs. If, however, as may be inferred, she in fact claims that she is a bona fide holder of the debt for value, then she can recover thereon against the plaintiffs, and if they should be compelled to pay her the amount of the draft they would still be liable to pay Alcock & Co. the price of the goods.

It is true that Alcock & Co. and Mrs. Leslie both claim the same amount of the plaintiffs, but the one claims it for goods sold and the other claims it upon a draft, and if the plaintiffs should pay the money into court would it be paid to apply upon the price of the goods or upon the draft ?

Undoubtedly the plaintiffs are exposed to the hazard of paying the sum claimed of them twice. But that hazard does not spring out of their liability to pay Alcock & Co., but out of the question whether Mrs. Leslie is a bona fide holder of the draft for value; and whether she is or not is a matter solely between them and her.

If the two defendants were both claiming the money due upon the draft, or both claiming the money due for the price of the goods, the case would be different. But one defendant claims payment for the goods and the other claims payment upon the draft, and payment of the one would be no defense to an action for the other.

We may imagine still another state of things. Suppose the plaintiffs claim, and are able to establish, that Alcock & Co. took the acceptance of the American Exchange in absolute payment for the goods sold to the plaintiffs. Then the only parties interested in that matter are the plaintiffs and Alcock & Co. Mrs. Leslie has no concern with ifc, and she and Alcock & Co. cannot be compelled to engage in a litigation over it. As has been stated, if she is a bona fide holder for value, her claim upon the draft cannot be defeated by showing payment for the goods. If she is not a bona fide holder for value, she cannot recover, as the sole purpose of the draft was to put the American Exchange in funds to pay the accepted draft of Alcock & Co., and it could not lawfully transfer the draft to her to apply upon a precedent debt.

For all these reasons, therefore, it is entirely clear that this is not a case for interpleader, and the judgment below should be affirmed, with costs.

All concur; Ruger, Ch. J., in result.  