
    Herman Dreyer v. Louis Rauch and Frederick Schmitt (the latter substituted as Defendant in place of Louis Rauch).
    Sections 64 and 122 of the Code of Procedure are applicable to the district courts, and those courts have the power to compel adverse claimants of the same money or property to interplead, in a proper case. '
    
      Query, whether they have the power in cases where the adverse claimants reside outside of the district over which the court has jurisdiction ?
    Two actions were brought in a district court, by different plaintiffs against the same defendant, to recover a certain sum alleged to have been earned by way of commissions for effecting the sale of property: Meld, that the only question being which of the plaintiffs in the two actions had earned the commissions, it was a proper case for an interpleader; and that, on the defendants’ motion, the court had power to direct the payment of the money into court by the defendant, and to order the plaintiff in one of the actions to be made defendant in the other.
    What allegations are sufficient in the affidavit to warrant an order of inter-pleader.
    If it clearly appears from the averments in the affidavit that the defendant is ignorant of the rights of the respective claimants, and does not know to which he can safely pay the money in his hands, ikjs sufficient to confer jurisdiction on the court to make an order of interpleader.
    Where "two brokers claimed the same commission, each alleging that it was through him the sale was effected, and it appeared that one had only called the attention of the subsequent purchaser to the property, while the other, several months afterward, and without knowing that the purchaser’s attention had previously been called to the property, brought him and the seller together and effected a sale, Meld, that the latter was the procuring cause of the sale, and was entitled to the commission.
    Appeal by the plaintiff from a judgment rendered in one of the district courts. The defendant Rauch, being desirous of selling a bakery belonging to him, authorized the plaintiff Dreyer, the defendant Schmitt, and one Christopher Weinz, (each of whom was a real estate broker, and acting for himself individually,) to sell the same, he agreeing to pay to the one who should procure him a satisfactory customer a commission of five per cent.
    
      On or about the 20th day of January, 1870, the bakery was sold to one John Basp for $3,500, which was the sum or price at which each of said brokers was authorized to sell the same.
    The plaintiff claimed that the purchaser was his customer; that the sale was effected through his agency; and that he, therefore, was entitled to the commission, amounting to $175, to recover which he brought this action.
    Each of the other two brokers also asserted that Basp was his customer, and claimed to be entitled to the commission.
    The defendant Schmitt accordingly brought an action against Bauch in the same court, and for the same cause as the plaintiff herein, but the other broker (Weinz) subsequently waived and withdrew his claim.
    On the return day of the summons in this action, the defendant Bauch made a motion that he be permitted to pay the amount claimed, with interest, costs, &e., into court; that Schmitt be substituted in his place and stead as defendant in this action; and that he (Bauch) be thereupon discharged from liability to either party.
    This motion was granted on the 26th day of February, 1870, and in pursuance of an order made by the justice, the defendant Bauch, on the same day, deposited the moneys with the clerk of the court, and the defendant Schmitt was substituted in his place, without any objection or exception on the part of the plaintiff.
    The defendant Schmitt appeared in the action, and the cause was tried on its merits on the 5th day of March, 1870 ; and on the same day the justice rendered judgment in favor of Schmitt, whereupon the clerk paid over to him the moneys deposited as aforesaid.
    The plaintiff appealed to this Court.
    
      Geo. Carpenter, for appellant.
    I. The court below erred, and had no right or power to substitute Schmitt in place of Bauch, the defendant, who was sued by the plaintiff. (1.) The 15th sub. of sec. 64 of the Code-gives District Courts no power to make orders in actions pending before them to bring in other parties or substitute other defendants in the place of the one sued. (2.) If the proper parties were not suéd, the action should have been dismissed. The District Court Act (Laws of 1857, page 707) makes certain sections of the Code applicable to these courts, but does not make section 122 applicable, or any of the sections applicable, from section 69 to 126, as contended for by the respondents, under the 8th section of the Code relating to all the courts mf this State,- which can only mean courts of record.. If these sections apply to these courts, they have jurisdiction in all actions, the same as the Supreme Court; If the plaintiff sued in the defendant’s district, how could another defendant be substituted, who was a resident in another district, and had there, commenced his action (see Sec. 4, Laws of 1857, p. 708). If the plaintiff made out his cause of action, he was entitled to judgment, and if the Schmidt in his action proved his case, he was entitled to judgment; but both actions, after they were commenced,, had to be tried by the justice before whom they were commenced.
    II. This was not a case in which another person could be substituted for the defendant sued, even if the court had the power (Sherman v. Partridge, 1 Abb. Pr. 261; 4 Duer, 450; 11 How. Pr. 154; Nelson v. Duncan, 11 Abb. Pr. 7; Shaw v. Coster, 8 Paige, 387; Turner v. Mayor of Kendall, 2 Dowl. & L. 197).
    III. The defendant’s affidavit did not entitle him to an order of interpleader, as it must appear that the defendant is ignorant of the rights of the opposing claimants, and cannot ascertain the same.
    
      A. C. Anderson, for respondent, Rauch.
    I. Section 122 of the Code applies to the District Courts;; sections 69 to 126, both inclusive, relate to actions in all the courts of the State; section 48 of the District Court Act provides that the provisions of sections 55 to 64, both inclusive, .and of sections 68 of the Code, shall apply to these courts. It was not the intention of the law that a defendant, sued in the District Courts, should be deprived of any relief or benefit he had, or could have had, if he had been sued in another court of justice. (Young v. Moore, 2 Code Rep. 143; Hodges v. Hunt, 22 Barb. 152; Fenn v. Timpson, 4 E. D. Smith, 276.)
    II. The plaintiff acted on the order and proceeded to try the question as to who was entitled to the money without objection, and not- having objected, he consented, and thus conferred upon the justice jurisdiction. (Clapp v. Graves, 26 N. Y. 418.)
    III. The court having jurisdiction to make the order, it was a proper case for the exercise of its discretion.
   By the Court.

Loew, J.

By section 8 of the Code, the provisions of that act, from sections 69 to 126, both inclusive, are made applicable to actions in all the courts of the State.

That this refers to actions in the district and other inferior courts, as well as those in courts of record, is evident from the fact that the same section declares that the other provisions of the second part of the Code shall relate to actions in the Supreme 'Court and the other courts of record, and also for the reason, that in the enumeration of the courts of this State, in section 9, the justices’ (now district) and other inferior courts are mentioned.

It is quite clear, therefore, that after the passage of the amended Code in 1849, section 122 was applicable to actions ■in the inferior as well as in the higher courts.

If, however, there could be any doubt as to whether the •provision in regard to interpleader, which was added to that ■section in 1851, applies to those courts, the same is removed so far as the district courts are concerned, by section 48 of the District Court Act (Laws of 1857, chap. 344, § 48). That section makes section 64 of the Code of Procedure applicable to those courts, and the 15th sub-division of the last named section declares that the provisions of that act, (i. e., the Code,) respecting forms of actions, paHies to actions, etc., shall apply to said courts.

Now the provisions concerning parties to actions are embraced within sections 111 to 122 of the Code, both inclusive.

The district courts, therefore, unquestionably possess the power to compel adverse claimants of the same money or property to interplead if the case be a proper one.

It may, perhaps, be doubtful, whether this power of compelling parties to interplead, extends to persons residing outside of the respective districts over which these courts have jurisdiction, but as the defendant, Schmitt, submitted himself to the jurisdiction of the court, and appeared in the action without objection, it is not necessary to express an opinion on that point.

The question then arises, was the case under consideration a proper one for the exercise of that power ?

I have no hesitation in saying that it was.

The action 'was brought to recover commissions, the amount of which was agreed upon by all parties.

Moreover, each of the claimants insisted that the purchaser was his customer, that the sale was effected through his individual agency or exertions, and each of them demanded the same sum of money from the defendant Bauch.

The latter admitted that he was bound to pay one party or the other, and the only point to be determined was, to whom the same was to be paid.

The affidavit of the defendant Bauch, I have no doubt, was sufficient to confer jurisdiction on the court below to make the order of interpleader.

It, showed: (1.) That an action upon contract was pending against him in which issue had not been joined. (2.) That a person not a party to the action made a demand of him for the same debt or sum of money. (3.) That he was not in collusion with said person. (4.) That he was indifferent to the claims of either party; and, (5.) That he himself had no interest in, and made no claim upon the moneys held by him, but was ready and willing to deposit the same in court, to abide the event of the action.

That, I apprehend, was all that the code required, or was requisite should appear in the affidavit. .

But if, as is contended by plaintiff’s counsel, and some of the authorities seem so to hold, it be necessary for a party to show, in addition, that he is ignorant of the rights of the respective claimants, and does not know to which he can safely pay the money in his hands, then, in my opinion, that clearly appeared from the facts alleged and averments contained in the affidavit.

I do not know of any case, nor has our attention been called to any, which decides that anything is necessary to be stated in terms beyond what the statute calls for.

Respecting the merits of the case, I am unable to agree with plaintiff’s counsel, that the justice erred in deciding that the defendant Schmitt was entitled to the moneys deposited in court.

Whichever of the two parties was the procuring cause of the sale was entitled to the commissions.

It is true the plaintiff first called the attention of the purchaser to the bakery in question; but from the testimony returned to us, it appears that that was all he did.

It resulted in no agreement, and the negotiation fell through.

Several months thereafter the defendant Schmitt, without knowing (as appears by his testimony) that Rasp’s attention had previously been called to the said bakery, offered the same to him (Rasp), brought him and the seller together, and finally succeeded in effecting a sale.

Under these circumstances, I do not see how it can be fairly claimed that the plaintiff found the purchaser, or that he was the procuring cause of the sale.

In my opinion, the court below was correct, not only in making the order of interpleader, but also in rendering judgment in favor of the defendant Schmitt; and I think the judgment should'be affirmed.

Judgment affirmed. 
      
       Present—Loew, Robinson and J. F. Daly, JJ.
     