
    Leonard Vyne, Appellant, v. Isidore Mosson and Hermann Mosson, Copartners, Doing Business under the Name and Style of Mosson Bros., Respondents.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Interpleader — order of — when proposed intervenor not served with notice of application — when order not sustained.
    The court upon a motion for an order of interpleader should be able to see that there is some reasonable foundation for the claim of the third party and that defendant cannot without peril determine to which of the claimants he should pay the fund in litigation, and where these conditions are not shown to' exist the order cannot be sustained, and where the proposed intervenor was not served with notice of the application for the order it will be reversed and the motion denied.
    Appeal from an order of the City Court of the city of New York granting the motion of the defendants for an interpleader herein.
    Herman D. Goldberg, for appellant.
    Eugene I. Gottleib, for respondent.
   Philbin, J.

This action was brought by plaintiff upon two causes of action. The first sets up a claim against the defendants for $342.18 as assignee of the Colonial Lumber Company, a foreign corporation. The second cause of action alleges a draft or bill of exchange payable to the plaintiff and accepted by the defendants also for $342.18.

The said assignment was made on the 12th day of July, 1915, and the defendants then accepted the same and promised to pay said amount to the plaintiff. The defendants procured the order appealed from by the plaintiff interpleading one Isabel Bonner under the following circumstances: After the said assignment to the plaintiff and in the month of August, 1915, said Isabel Bonner began an action against plaintiff’s assignor, said Colonial Lumber Company, to recover the sum of $637.86 and procured a warrant of attachment against it. On the 4th day of August, 1915, the defendants herein were served with said warrant attaching money or property of the said Colonial Lumber Company in the hands of said defendants. Later a notice was likewise served upon them by said Bonner claiming that the said assignment by said Colonial Lumber Company to plaintiff herein was invalid and that, therefore, the moneys due from the defendants were still the property of said Colonial Lumber Company and subject to said attachment. Upon these facts the petition of the defendants that said Bonner' be brought in as a party defendant was granted and the order appealed from made. The said order also directed that upon the payment of said sum of $342.18 into court with interest the' action be discontinued as against said defendants. . The- grounds .upon which said assignment is claimed by said Bonner to be invalid are that it w.ás without consideration and was iiot properly executed. The only indication of lack of consideration is á reference in the said petition of the defendants to an assertion made by said Bonner to that.. effect. The assignment is not included, in the record and consequently it is not possible to pass upon its sufficiency. This is material since the defendants and Bonner must be regarded as inferentially admitting that the plaintiff would be the only one entitled to said fund if the assignment was sufficient. The court when called upon to exercise its discretion in such circumstances should be able to see that there is some reasonable foundation for the claim of the third party and that the defendant cannot without peril determine to which of the claimants he should pay the fund. Steiner v. East River Savings Institution, 60 App. Div. 232. It must be said that those conditions did not exist here. The said Bonner as attaching creditor had not attained a status that enabled her to attack the assignment under which the plaintiff claimed. Venable v. New York Bowery Fire Ins. Co., 49 N. Y. Super Ct. 481; Thuber v. Blanck, 50 N. Y. 80; Castle v. Lewis, 78 N. Y. 131. Therefore if she became a party defendant she would be in no better position than these defendants to question plaintiff’s claim. In any event the right of the plaintiff to the said sum of money under the second cause of action is exclusive and so in no event could the proposed intervenor defeat the plainT tiff’s claim as set forth in said second cause of action.

A further reason why said order cannot be sustained is to be found in the fact that the said proposed intervenor was not served with notice of the application for the order. Code of Civ. Pro., § 820; Bullowa v. Providence Life & Trust Co., 125 App. Div. 545; O’Connor v. Lock, 148 id. 765.

G-uy and Page, JJ., concur.

Order- reversed, with ten dollars costs and disbursements, and motion denied with ten dollars costs.  