
    Lemar Paint Products Company, Inc., Plaintiff, v. Joseph Di Miceli et al., Copartners Doing Business under the Name of Di Miceli & Perna et al., Defendants. Gulf Construction Linwood Corp., Defendant and Interpleading Plaintiff, v. United States of America, Interpleaded Defendant.
    Supreme Court, Special Term, Queens County,
    August 2, 1956.
    
      Lester Grossman for plaintiff.
    
      Sol Horenstein for defendant and interpleading plaintiff.
    
      
      Leonard P. Moore, United States Attorney for Eastern District of New York (H. Elliot Wales of counsel), for inter-pleaded defendant.
   David Kusnetz, J.

Motion by plaintiff for summary judgment against the defendant Gulf Construction Linwood Corp. Cross motion by the United States of America for an order dismissing the interpleading complaint and for leave to intervene as a party plaintiff.

Plaintiff sold some paint to the defendants Di Miceli and Perna, who had contracted to do some work for the defendant Gulf. As a result of these transactions, Gulf owed money to Di Miceli and Perna, who in turn owed money to the plaintiff. Di Miceli and Perna authorized Gulf to pay the money to the plaintiff. Before Gulf had made the payment, the United States filed liens for taxes against Di Miceli and Perna. Gulf has in its possession $3,400, to which money it makes no claim. Said moneys were originally owed by Gulf to Di Miceli and Perna. Gulf’s sole interest is to avoid double liability. For that reason, when it was served with the summons and complaint herein, it served an interpleading complaint on the United States on or about March 26, 1956. More than 60 days have elapsed since such service and the United States has not appeared or answered except to make the cross motion herein. It is the position of the United States that it cannot be made a defendant herein.

The United States has given its consent to be sued in certain cases brought ‘ ‘ to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien. ” (U. S. Code, tit. 28, § 2410.) In similar cases, it has been held that the United States can be interpleaded pursuant to said statute. (Johnson & Sons v. National City Bank of N. Y., 129 N. Y. S. 2d 86; Matter of Lavenburg v. Universal Sportswear, 198 Misc. 318; see, also, Adler v. Nicholas, 166 F. 2d 674, 678; Matter of Sills, 115 F. Supp. 239.) As pointed out in the Johnson case (supra), while such interpleader makes the United States a nominal defendant, actually it is joined as a claimant to the fund and will be in a position to assert its claim.

Plaintiff’s motion for summary judgment is denied. The cross motion of the United States to dismiss the interpleading complaint and for leave to intervene is denied, but the time of the United States to answer the interpleading complaint is hereby extended until 30 days after service of a copy of the order to be entered hereon. Settle order.  