
    Hamilton W. Shipman, Pl’ff, v. William H. Scott, Def’t, and Resp’t, Theodore W. Frech, Impleaded, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1887.)
    
    Interpleader—When proper.
    In a case of the sale of a piece of property in which each of two brokers claim brokerage, and to have negotiated the sale, and to have induced the purchasers to sign a contract, and one brings an action to recover his commissions, even if the contracts were entirely different, it is proper for the court to make an order of interpleader substituting the other broker as defendant, the question to be tried being which one was the procuring cause.
    This action is brought by plaintiff to recover a broker’s commission amounting to $710 for negotiating the sale of a piece of real estate formerly owned by defendant. The defendant has not answered. In affidavits he admits his liability to pay such amount, but avers that one, T. W. Freeh, another broker, claims such commission for procuring such sale.
    An order of interpleader was thereupon granted directing defendant to pay said sum into court and substituting said Freeh as defendant in the place of the defendant above named. From such order this appeal is taken.
    
      John C. Shaw, for app’lt; William H. Scotty for resp’t; Philip Van Alstine, for plt’ff.
   Larremore, C. J.

The present case is not one where an owner of real estate, having employed two brokers, becomes liable for more than one commission because each broker has procured a separate purchaser. The only purchaser mentioned is Sarah J. Doying, to whom the property was actually sold, and each broker claims that he negotiated such sale.

The general term of the city court, therefore, properly affirmed the order of interpleader on the ground that, as both brokers claimed to have been employed, the question to be tried was which one was the procuring cause. Dryer v. Ranch, 3 Daly, 434.

The present appeal is taken by the broker, brought into this litigation through the order of interpleader; the plaintiff, though' he opposed the motion, seems to have acquiesced in the decision. Counsel for the appellant claims that in this case there is lacking one of the essential elements of a valid application for interpleader because the court “requires two parties to contest a fund which neither one hiaim a is the fund he is entitled to,” or in other words, because the two brokers do not claim the same thing. This contention is founded upon a real or supposed difference in the contract of sale which each broker maintains he procured to be executed by the purchaser. It is agreed that the appeal papers show that Shipman claims that he induced Mrs. Doying to sign a certain contract of sale, and that Freeh claims that he induced her to sign a different one. An inspection of the contract, as it is set forth in the affidavits of the respective brokers, does not reveal any essential divergencies, except the fea-ture of procuring Mr. Shaw’s guarantees which appears in one and not in the other.

A loan is mentioned in both, but only in one are the particulars of the loan given. These two contracts, or these two versions of the same contract, are in no respect inconsistent with each other. The only difference between them seems to be that one is fuller and more explicit than the other. But even if the contracts claimed to have been negotiated by the respective brokers were essentially different and inconsistent, it would not be an argument against granting an order of interpleader.

The undisputed fact is that Sarah J. Doying purchased the premises in question. Each broker claims a commission for negotiating such sale. The court had directed that the brokers litigate between themselves the question which one was the procuring cause.

If the contracts of sale claimed by each to have been negotiated are different agreements, then in determining which was the procuring cause necessarily there will have to be determined which contract the purchaser as a matter of fact executed. If they are essentially different and inconsistent she cannot have entered into both, and under the circumstances the determination which contract she became a party to and followed in making the purchase would in itself be the determination of which broker was the procuring cause.

This question, therefore, far from being a legal objection to the order of interpleader, would, according to appellant’s own theory, be an additional reason for making it, and would be the very matter of fact to be tried between the plaintiff and the substituted defendant.

The order should be affirmed.

Daly and Van Hoesen, JJ., concur.  