
    Carl T. Burritt, Respondent, v. Press Publishing Company, Appellant.
    
      Interpleader — the right is not absolute, but rests in discretion—when an irresponsible employee of the defendant will not be interpleaded as a claimant of a reward.
    
    A party defendant, against whom a claim is made by a third party for a reward sued for in the action, is not entitled as a matter of right to interplead such third party with the plaintiff in the action.
    In such a case, where it appears that the person sought to be interpleaded is an employee of the defendant, is not responsible for- costs; that he did no more leading to the arrest and conviction of the thief for which the reward was offered, than to report to his employer that he saw the thief at the desk where ■ the article stolen was, and that he made no claim to the reward until about a month after the assignee of the first claimant commenced the action for the ■ reward, and where the court is justified in finding that the defendant acted upon the information furnished by the plaintiff’s assignor, upon the understanding that it was furnished for the purpose of earning the reward, and that it made use of the plaintiff’s assignor to furnish proof upon which a warrant was issued for the arrest of the thief, and that by reason of information given by the plaintiff’s assignor the detectives were enabled to make the arrest which resulted in the conviction of the accused, a denial of a motion for interpleader will not be set aside on appeal.
    Appeal by the defendant, the Press Publishing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of December, 1891, denying the defendant’s motion for an order of interpleader. "
    This action was brought to recover the amount of a reward offered hy the defendant for information leading to the arrest and conviction of parties engaged in the theft from it of subscription and newsdealers’ proofs, to which reward the plaintiff’s assignor, John Cook, ■claimed to be entitled.
    
      James W. Gerard, Jr., for the appellant.
    
      Ralph S. Rounds, for the respondent.
   Hatch, J.:

When this case was before us upon a former appeal we held that the defendant’s moving papers were insufficient upon which to base .an order of interpleader. (Burritt v. Press Pub. Co., 19 App. Div. 609.) The papers presented upon the present motion are technically sufficient, and upon the allegations therein contained an order of' interpleader could have been sustained. This fact is not, however, the sole test by which the right to the order is to be determined. The language of the Code (Code Civ. Proc. § 820) is that the ■court may, in its discretion, make such order upon such terms as may be just. That the party against whom the conflicting claims ■are made is entitled to the order as matter of right is denied, not only by the provisions of the Code, but by authority of Barry v. Mutual Life Ins. Co. (53 N. Y. 536); Taylor v. Satterthwaite (2 Misc. Rep. 441). This being the law governing motions of this character, and the court below having exercised its discretion in the matter, our authority and duty are limited to an inquiry as to whether the discretion has been abused. No question can arise but that the language contemplates a judicial discretion; and arbitrary action unsupported by any reasonable basis would be an abuse of such discretion. The papers which resulted in the order appealed from disclosed that Corcoran, the person sought to be interpleaded, saw Meehan, who stole the proofs, at the desk where they were kept the Saturday night before the reward, the subject of this controversy, was offered. On Monday morning following, Corcoran communicated what he had observed to one Monaghan, who was then in charge of the delivery department of defendant’s newspaper; the latter communicated this information to Norris, who was the treasurer and business manager of the defendant. Norris states in his affidavit that this information was received prior to the communication made by Cook, plaintiff’s assignor, and that he thereupon placed the matter in the hands of the police force of the city of New York, furnishing them with a description of the person whom Corcoran saw; and he adds that upon stick information the party was arrested through the efforts of Detective Sergeants Rynders and Evankoe of such police department and Captain O’Brien, chief of the detective bureau. Corcoran was, when he gave the information, and now is, in the employ of the defendant as a clerk, and the affidavit of Cook, read in opposition to the motion, states that he is informed that Corcoran is • not of financial responsibility. This statement was reiterated upon the argument, and was not denied by the defendant. It is not shown or claimed that Corcoran ever did anything more leading to the arrest of Meehan than to report what he saw. So far as the papers disclose, he made no claim to the reward until he served his notice, and this was over a month after the action was commenced. While the affidavit of Norris states that the information leading to the arrest of Meehan came from Corcoran, and that the arrest was made through the efforts of the police, yet it is quite clear that such allegations are mere conclusions and do not have the support of facts in the detail of what was done. The court below was authorized upon the papers to find that the defendant acted upon the informa- ■ tion furnished by Cook upon the understanding that such information was furnished for the purpose of earning the reward; and that, in pursuance of such understanding, it made use of Cook to furnish proof upon which a warrant was issued for the apprehension of Meehan, and that, by reason of the information which Cook gave to the detectives, they were enabled to make.the arrest which was followed by a conviction. After this action was begun the secretary of the defendant deuied under oath that Cook furnished any information leading to the arrest and conviction of Meehan, or that he complied with the conditions entitling him to the reward.

The defendant knew, when this action was brought, all that it now knows respecting Corcoran’s connection with the matter, and the position which it then took was that it was not liable to Cook, as he had not given information which entitled him to the reward. No claim- was made that any one else had earned it at that time, Corcoran was in its employ, and has since continued therein. But the defendant did not then insist, nor did Corcoran claim, that there was any liability to him. After denying positively any liability to Cook, and after more than a month had elapsed from the commencement of the action, Corcoran came forward with a claim. Considering the position first taken by the defendant and the subsequent action of Corcoran and his relation- to the defendant, the court was authorized to say that the action of Corcoran in making the claim was collusive with the defendant, in the legal sense of that term. The affidavit of Norris upon that subject is not conclusive. It was made by an interested party, and the court had the right to' disbelieve the statement and reach a different conclusion upon the facts as they were disclosed. Such view has support in the affidavits presented to the court. While the irresponsibility of the party proposed to be interpleaded to respond in costs, in the event that he fails in establishing his claim, is not controlling, yet it is a circumstance which may be considered in connection with the other facts. (Williams v. Ætna Life Ins. Co., 8 N. Y. St. Repr. 567.)

Taking all of the proof into consideration, we think a case was presented which authorized the court to make the order appealed from. It should, therefore, he affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  