
    Albert L. Hanscom, Resp’t, v. Mortimer Hendricks, Substituted in the Place of the Consolidated Stock and Petroleum Exchange of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889 )
    
    Action—To recover specific fund—When plaintiffs may maintain-action.
    In an action brought to recover a fund originally deposited with the Consolidated Stock and Petroleum Exchange, it appeared that one Sutton leased to one Wolff certain premises for a period commencing March 1, 1887, and ending May 1, 1888, at an ascertained annual rental. In November, 1887, Wolif owed Sutton for rent and upon demand being made for payment of the same, Wolff told Sutton that he was a member of the exchange, and agreed that the membership should be transferred to Sutton as security for the rent on the lease; that until the expiration of the lease Wolff might redeem the membership by paying the rent due, and in case he failed to do so the membership should become the absolute property of Sutton. The latter was found to be ineligible to membership, and it was thereupon agreed between Wolff and Sutton that the membership should be transferred to the plaintiff for the same purpose and upon: the same terms. It was ascertained that as a prerequisite to memb. rship a deposit to meet the indebtedness of Wolif to the exchange and its members was required and the amount fixed upon was loaned by Sutton to the plaintiff who deposited it with the exchange. In order that the balance of the sum after the deductions to the exchange, should be paid directly to the plaintiff a power of attorney was executed by Wolff, and directing such payment, was lodged with the exchange. Immediately after his election the plaintiff made a demand for this balance. In the meantime the defendant had obtained a judgment against Wolff and had instituted supplementary proceedings, and this action was instituted. It was ascertained on the trial that the rent exceeded the amount of the value of the seat. The exchange interpleaded the defendant and the sum in question was deposited in court. Held, that the defendant presents no equity superior to that existing between Sutton and the plaintiff; that the plaintiff has a special property in the money sufficient to enable him to maintain, his action.
    This is an appeal from a judgment rendered at special term, upon a trial before Mr. Justice Parker. The action was brought to recover a fund originally deposited with the Consolidated Stock and Petroleum Exchange of New York. By an order of interpleader, the appellant, Mortimer Hendricks, was substituted as defendant m place of the Exchange, and the fund was directed to be brought into court and placed to the credit of the'action. The sum so deposited amounts to $934.
    The complaint alleges that on or about November 25, 1887, the plaintiff, Albert L. Hanscom purchased from one Charles G-. Wolff a membership in the Consolidated Stock and Petroleum Exchange; that Wolff had leased from one George W. Sutton a dwelling house in New York city, at an annual rent of $1,800; that a large portion of the rent then due had not been paid; that rent for several months would still have to be paid before the lease ex-piréd; that by agreement with Sutton, the membership Was sold and transferred to plaintiff in lieu of the rent, and in return for the use and occupation of the dwelling house until the termination of the lease; that by the rules of the said Exchange plaintiff could not qualify as a member, or obtain a transfer of the said membership, unless a sum equal to its reasonable value was deposited by him with the Exchange for the purpose of enabling it to satisfy all claims which it -or its members might have against the person selling the seat or the person to whom it was sold; that plaintiff deposited the sum of $1,075 with the Exchange in compliance with said rules: that Wolff at the same time, for the purpose of notifying the Exchange that he had no interest or ownership in the money so deposited, gave to the plaintiff a power of attorney directing the Exchange to pay the sum so deposited to the plaintiff after the required deductions had been made, which power of attorney was filed with the Exchange: that such deductions amounted to the sum of $126; that the balance due from said Exchange amounted to $949, and that plaintiff was the owner of this sum then deposited in court.
    The substituted defendant, Mortimer Hendricks, by his answer, denies any knowledge or information as to the facts above alleged, and further states that on or about November 18, 1887, he recovered judgment against the said Charles G. Wolff for $2,164.79, upon which execution was duly issued and returned unsatisfied; that on January 9, 1888, he instituted supplementary proceedings against the Stock Exchange and examined its president, Charles G. Wilson, who testified that he had received from the plaintiff the sum of $1,075, the proceeds of the sale of the membership owned by the said Wolff, and that the moneys so deposited were in the possession of the Exchange to the credit of Wolff. Defendant alleges that the moneys so deposited were the moneys of Wolff, and that any pretended transfer of the same was for the purpose of hindering and defrauding the defendant. Defendant prays for a dismissal, making no demand for affirmative relief. Upon the trial the following facts appeared: In February, 1887, one George W. Sutton, through Reuben Skinner his general real estate agent, leased to Charles G. Wolff premises in New York for a period commencing March 1, 1887, and ending May 1, 1888, at a rental of $1,800 a year, payable quarterly. Skinner collected the rents and acted as the agent of Sutton in all the transactions growing out of the lease. In November, 1887, Wolff owed Sutton about $450 for rent. Upon demand being made by Skinner, Wolff stated that he was a member of the Consolidated Stock and Petroleum Exchange, and it was then agreed between Skinner, as Sutton’s agent, and Wolff that this membership should be transferred to Sutton as security for the payment of the rent on the said lease; that until the expiration of the lease, Wolff might redeem the membership by paying the rent due, and that in case Wolff failed to pay the rent due at the expiration of the lease, the membership should become the absolute property of Sutton. Mr. Sutton was found to be ineligible to membership in the Exchange, being over fifty-five years of age. It was thereupon agreed between Skinner, as Sutton’s agent, and. Wolff, that the membership should be transferred to Hanscom, the plaintiff, for the same purpose and on the same terms. Skinner and Wolff went to the Exchange to ascertain what formal proceedings were necessary to carry out this agreement. They were informed by the president and secretary that a deposit of $1,075 would be required to meet the indebtedness of Wolff to the Exchange and its members. That sum was fixed as the upset price of the seat.
    The rules of the exchange governing transfers of membership, are as follows:
    “ Whenever any member of this association shall desire to discontinue his membership, and to name a successor, he shall send a written communication to the chairman of the committee on membership, stating the fact, with an official nomination of a successor, who shall pay to the chairman of the committee the amount of the consideration for such nomination. The money deposited with the chairman shall be distributed by him in the following manner:
    
      First. To the association, to the extent of any money due it.
    
      Second. In payment pro rata of claims filed by members and adjudged as valid.
    
      Third. The remainder, if any, to the retiring member or his legal representative.
    The nomination must be confirmed by the membership committee, and the person so admitted must duly qualify and deposit the sum fixed as the upset price of the seat sold, before the membership will be transferred on the book of the exchange.
    
      The amount fixed as the value of Wolff’s seat ($1,075), was loaned by Sutton to the plaintiff, Hanscom, who deposited it with the exchange.
    At the suggestion of the officers of the exchange, and in order that the balance of the sum deposited remaining after the deductions required by the above rules should be paid directly to Hanscom, a power of attorney executed by Wolff, and directing such payment was lodged with the exchange.
    Hanscom passed the committee on admissions, duly qualified, and Wolff’s seat was duly transferred to him on the books of the exchange. The amount of rent due at the expiration of Wolff’s lease, was $1/350, no part of which has been paid.
    Immediately after his election (about January 5, 1888) Hanscom made a demand for the balance of the moneys deposited, amounting to $949. In the meantime Mortimer Hendricks, the defendant, had obtained a judgment against Wolff, and had instituted supplementary proceedings, ■serving a third party order upon the president of the exchange. In the course of his examination the deposit of the above sum was discovered, as was also the power of .attorney making the same payable to the plaintiff.
    This action was then instituted, whereupon the exchange interpleaded the defendant, Mortimer Hendricks, and the sum in question, less costs, was deposited in court.
    Upon these facts the court below rendered judgment in favor of the plaintiff, from which defendant takes this appeal.
    
      Abram Kling, for app’lt; Carter, Hughes & Cravath, for resp’t.
   Brady, J.—

It will be observed from the statement of facts that this is an action to recover a specific fund, of which the plaintiff claims to be the owner.

This is disputed by the defendant, who asserts it to be the property of his judgment-debtor, and urges a lien by virtue of supplementary proceedings, an account of which is given in the statement. It is not, therefore, an action to reach a seat in the Consolidated Stock and Petroleum Ex■change. The transaction out of which the controversy arises is one which. was designed to secure to Mr. Sutton the rent which was due to him, or would become due, upon the expiration of the term for which Mr. Wolff had hired from him the premises he occupied.

The statement seems to leave but little doubt about the ownership of the fund and the person to whom it should be paid. The evidence shows that for the purpose of accomplishing the transfer of the seat of Wolff to the plaintiff it was necessary to make a deposit of a certain amount of money, which is the sum in dispute here, and that sum was loaned by Mr. Sutton to the plaintiff, who, for the time being, became the trustee of Sutton for the purpose of accomplishing the security for his benefit.

It may be here observed that there can be no doubt upon the evidence that the transfer of the seat was intended to cover the entire amount of the rent, which was due and might become due under the lease to Wolff.

The money which was thus deposited was to be distributed by the chairman of the committee on membership in the manner indicated in the statement, and at the suggestion of the officers of the exchange, and in order that the balance after the deductions required by the rules, should be paid directly to the plaintiff, a power of attorney was executed by Wolff directing such payment, and lodged with the exchange. Immediately after the election of the plaintiff, he made a demand for the balance remaining of the moneys deposited, which amounted to $949.

It is quite apparent that whatever interest Wolff had in the fund was transferred to Hanscom, and that whatever •sum was to be paid by the exchange, was by Wolff’s direction to be paid to him.

This was a part of the original transaction itself, and was for a specific purpose, which was accomplished by these ■details.

The defendant presents no equity superior to that existing between Sutton and the plaintiff, even if it be necessary to consider the case in that aspect. But he has nothing whatever to do with these equities.

The details of the transaction between Wolff and Sutton and the plaintiff, are sufficient to show a. special property in the money by the plaintiff, quite sufficient to enable him to maintain the action.

Whatever relations were created by it between the plaintiff and Sutton, are matters between them, with which the defendant has no right to interfere.

The extent to which he is entitled to consideration, is whether or not the fund which he seeks to have applied to the payment of his judgment belongs either in whole or in part to Wolff, his judgment-debtor.

It is quite clear that it does not, inasmuch as the rent exceeded the amount of the value of the seat.

For these reasons, without any more extended discussion of the various points raised by the respective counsel herein, the controversy involving it may be said nothing more serious than a question of fact, the judgment should be affirmed.

Ordered accordingly, with costs.

Van Brunt, Ch. J., and Daniels, J., concur in result.  