
    Dreyfus v. Casey.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Parties—Substitution—Practice.
    Code Civil Proc. IT. T. i 830, provides that the defendant in an action to recover a chattel may at any time before answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same property, apply to the court, upon notice to such person and to plaintiff, for an order to substitute that person as defendant in his place, and to discharge him from liability by delivering the chattel to the person found entitled to it. Held, that it is not necessary to show on the application that the claim of the third person would probably be successful. It is sufficient to show that the claim is being made without collusion with defendant.
    Appeal from special term, Mew York county.
    Action by Felix Dreyfus against William C. Casey, to recover certain chattels stored with defendant by one Carl Drucklieb. Defendant moved to substitute as defendant in his stead James E. Carpenter, receiver of Maurice Lillienthal’s estate, who was making a claim to the property. Motion was sustained, Lawrence, J., delivering the following opinion: “I am of the opinion that the motion made on the part of the defendant, that James E. Carpenter, the receiver of the property of Morris Lillienthal, appointed by the United States circuit court for the Southern district of Mew York, be substituted as defendant herein, should be granted. It was held in the case of Bank v. Mayor, etc., 4 M. Y. St. ltep. 565, by the general term of this department, that where ‘ a party defendant to an action asked for an order allowing him to pay money into court, and that certain other parties be interpleaded as defendants, that in order to succeed it was not necessary for the affidavit in support of the motion to show that the demands made on the money, etc., would probably be successful, but only that there was a person not a party to the action who makes a demand for the same debt, without collusion with the defendant.’ In Ball v. Liney, 48 M. Y. 6, it was held that if a bailee desires to relieve himself from the embarrassment of conflicting claims, and from the responsibility of deciding between them, he can do so by commencing a suit in the nature of a bill of interpleader against the different claimants, and thus have the right to the property judicially determined. While section 820 of the Code of Civil Procedure has not abolished the action of interpleader, it is intended to cover many cases in which such an action would formerly have been brought, and I think that this is a case in which the discretion of the court authorized by that section should be exercised. If there is anything in the case of Vosburgh v. Huntington, 15 Abb. Pr. 254, adverse to these views, I deem it sufficient to say that that case must be controlled by the later cases to which I have referred. Furthermore, I agree with the counsel for the defendant and the receiver, that this case should be decided upon the facts appearing at the time of the argument of the motion, at which time the property was still in the custody of the sheriff. See Schuyler v. Hargnus, 3 Bob. (ÍT. Y.) 673. In regard to the point that the plaintiff in this action was a bona fide purchaser from the alleged fraudulent vendee, the recent case of Soltau v. Gerdau, 48 Hun, 537, appears to me to be in point. Ordered to be settled on notice. ” Plaintiff appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Horwitz & Hershfleld, for appellant. Seaman & Conger, (Clarence R. Conger, of counsel,) for respondent Casey. Joseph F. Mosher, for Carpenter.
   Brady, J.

This action, which was of claim and delivery, was brought to recover several cases of goods which were then in the storage warehouse of the defendant, and the sheriff took possession of the property, which he still retained when the motion to interplead was made. The receiver claimed the property on the ground that it had been fraudulently disposed of by Lillienthal, and therefore authorized the application on behalf of the creditors whom he represented. The application seems to have been made in good faith, without collusion with the defendant or any one else, and in the discharge of a duty imposed upon him by his appointment as receiver. It was resisted upon the ground that it was not shown, as it should have been, by appropriate evidence that the claim interposed against the plaintiff would probably be successful, and that its merits should have been examined for the purpose of determining that question; and, further, that if the merits had been examined upon the facts and the law, the result would have been a denial of the remedy sought. The argument on behalf of the appellant, although elaborate, seems to have overlooked the peculiar provisions of section 820 of the Code of Civil Procedure, and the effect of it where adverse claims are made in an action kindred to this. By that section it is provided that a defendant against whom an action to recover a chattel is pending, at any time befpre answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same property, without collusion with him, may apply to the court upon notice to that person and the adverse party for an order to substitute that person in his place, and to discharge him from liability to either, by delivering possession of the property or its value, to such person as the court directs. And it further provides that the court may in its discretion make such an order. This section was considered interpreted in Bank v. Mayor, etc., reported in 4 N. Y. St. Rep. 565, and it was there declared that the right of the defendant to succeed in an application made under its provisions was not restricted to demands which might probably be made successfully against the subject of the controversy. It was only necessary for the defendant to show, in order to avail himself of its provisions, that a person not a party to the action makes a demand for the same debt or property, without collusion with him. The section, it will be observed, applies only to proceedings by motion' and by a defendant, as is said in the case of Railroad Co. v. Arthur, 90 N. Y. 237. The facts required by the section under consideration having been established, and the judge in the court below having in the exercise of his discretion made the order asked for, it cannot be disturbed, unless it appears that the discretion exercised was abused. There is nothing in the case to justify such a conclusion. The effect of the section, it must also be observed, is to create a distinction under its provisions, and an action in the nature of an interpleader, for the reason that in the latter it is necessary to show that the claim interposed is substantial, and will probably be successful, in order to entitle the plaintiff to maintain his action, as illustrated by the case of Bank v. Yandes, 44 Hun, 55, and the cases cited. The decision in Vosburgh v. Huntington, (made at special term,) 15 Abb. Pr. 254, is not in conflict with the views herein expressed, but if, by any interpretation it may be regarded as in conflict, it is sufficient to say of it, as suggested by the learnpd judge in the court below, that it is overruled by the case of Bank v. Mayor, etc., supra. And it may be further observed with regard to it that it does not consider the precise question herein discussed as paramount in importance. We have, therefore, presented to us, as responsive to this appeal, the section to which reference has been made, its interpretation by this court, the statement of the necessary facts by the defendant to invoke its aid under that section, and therefore the order granted must be declared to have been properly directed in that respect. It is nevertheless incumbent upon us to say further that the order entered upon the application is deficient in not stating what shall be done with the property during the pendency of the action. This may be supplied on application, however, to amend, and does not affect the propriety of the order allowing the substitution ordered. For these reasons the order appealed from should be affirmed, but we think, under the circumstances disclosed, without costs.

Daniels, J., concurs. Van Brunt, P. J., concurs in result.  