
    Baker v. Brown et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 3, 1892.)
    Exeoutous—Distribution oe Assets—Res Judicata.
    Where it has been adjudicated, on the final accounting by an executor, that a certain fund in the executor’s hands should be paid to one £>., and execution issued therefor, and the fund was claimed by other parties, it is too late for the executor to ask for an interpleader, he being bound by the adjudication.
    Appeal from special term, New York county.
    Action by James Baker, as executor of the last will and testament of James "Baker, deceased, against Edward F. Brown and Peter Bowe, as late sheriff of the city and county of New York. From a judgment and order overruling a demurrer interposed by defendant Brown to a complaint in an action brought to interplead defendants, defendant Brown appeals."
    Reversed.
    Argued before Van Brunt, P. J., and O’Brien and Barrett, JJ.
    
      Q. 8. Hamlin, for appellant. A. 8. & W. Hutchins, (A. 8. Hutchins and C. N. Morgan, of counsel,) for respondent.
   Van Brunt, P. J.

The complaint alleges that in or about the year 1882, in an action then pending in the supreme court, in which one Joseph E. Dewey was plaintiff and one Harriet 0. Gilbert and another were defendants, an attachment was duly issued out of the supreme court, directed to the defendant Peter Bowe, as sheriff of the city and county of New York, directing and requiring him to attach the property of the defendants, which attachment was duly served upon this plaintiff; that at the time of the issuing and serving of said attachment the said Gilbert was interested in the estate of one James Baker, deceased, as one of the legatees under his will, and that at that time there was in the hands of the plaintiff certain moneys and property to, which she was entitled as such legatee, which moneys and property were the property attached; that thereafter, in March, 188fi, Dewey duly recovered a judgment against the defendants Gilbert and another for the sum of $3,758.-23, which was duly docketed, and "an execution duly issued, directed to the •sheriff, which execution was duly served upon the plaintiff, who thereupon paid to said sheriff, in partial satisfaction of said judgment, the sum of $691.64, being the amount of money forming part of said estate then in his hands to which said Gilbert was entitled as legatee, and that the said attachment has never been vacated by the cancellation thereof, nor has the interest •of said Gilbert in the estate of James Baker, deceased, been released from the operation thereof; that afterwards, and before the final accounting of the plaintiff as executor, the said Gilbert died, and one H. 0. Ditmar was duly .appointed administrator with the will annexed of said Gilbert, by a court having jurisdiction thereof, in the county of Fond du Lac, in the state of Wisconsin, and thereafter, upon the application of said Ditmar, ancillary letters of administration were duly issued to said Ditmar by the surrogate of the city and county of New York. The complaint further alleged that on the 24th of March, 1891, the plaintiff, as sole surviving executor and trustee ■of said Baker, deceased, made and filed in the office of the surrogate of the city and county of New York his final account; and that thereafter such proceedings were had that an order was entered in said court whereby his accounts as such executor and trustee were finally settled and allowed, and in and by said order it wras decreed that out of the moneys then remaining in his hands as such executor the sum of $589.76 should be paid to said Ditmar, as administrator with the will annexed of said Gilbert, deceased. The complaint further alleged that the defendant Edward F. Brown claims said sum as assignee of said Ditmar, and that, for the purpose of enforcing payment to him of said sum, he has caused to be issued out of the surrogate’s court an execution directed to the sheriff, etc., requiring him to levy and collect the same out of the property of the plaintiff in this county. The complaint further alleges that the defendant Feter Bowe, as late sheriff, etc., to whom said warrant of attachment was issued and directed, also claims the said .sum of $589.76, and demands that the same shall be paid to him upon the execution issued to satisfy the aforesaid judgment in favor of said Dewey. The complaint then alleges that the plaintiff is ignorant of the respective rights of the defendants; has no claim upon such money, and is ready to deliver it to such persons as the court shall direct; and that the action has not been brought by collusion with the defendants; and prays judgment that defendants be restrained by injunction from taking any proceedings against plaintiff in relation thereto; that the defendants be required to interplead; and that the plaintiff be permitted to pay the money into court, and, upon payment thereof into court, he be discharged from all liability. To this complaint the defendant Brown demurred, upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to •constitute a cause of action. This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It is urged upon the part of the respondent that there being rival claims to the fund, and the respondent being liable to be doubly vexed, and in danger •of double payment, and himself making no claim to the fund in dispute, a proper case for an interpleader is presented. This undoubtedly would be true had it not been adjudicated by a court of competent jurisdiction as to how the money in the hands of the plaintiff, as executor and trustee, should be paid. Upon an accounting before the surrogate, with the attachment and •execution held by the defendant Bowe existing, an adjudication has been made that the executor pay to the administrator of Gilbert, deceased, the said sum of money. Under these circumstances, we do not see how a bill of interpleader can lie. If the executor intended to dispute the right of the administrator of Gilbert to receive the money in question, he was bound to present the claim there, and have it adjudicated upon. He was aware of the circumstances of this attachment, the fact of its existence, of its levy, of the-claim made by the sheriff; and these facts he should have presented to the surrogate in order that the surrogate might have made the proper order. But instead of that, as far as this record shows, a decree has been permitted to be-entered directing the payment of this money, and the surrogate has directed an execution to issue for its collection. It seems to us that it is too late,, after judgment and execution, to ask for an interpleader; and that is tImposition of the plaintiff in this action. It does not appear that any attempt whatever was made upon the part of this executor to bring in the other claimant of the fund adjudged to belong to the administrator of Gilbert. But with full knowledge of the facts, and of the claim made upon the part of the sheriff to this fund, in hostility to the representatives of Gilbert, be has permitted the surrogate to make his decree, directing its payment to such representatives. We are of opinion, therefore, that, there having been an adjudication as to the persons to whom this share was to be paid, it is binding upon the-plaintiff, and he cannot now seek an interpleader. The judgment and order appealed from should be reversed, .and the demurrer sustained, with leave to-the plaintiff to amend his complaint upon payment of the costs of this appeal and of the court below. All concur.  