
    Southwark National Bank, Appellant, v. Eversley Childs and Others, Executors and Trustees under the Will of William H. H. Childs, Copartners, doing Business under the Firm Name and Style of Mica Roofing Company, Respondents.
    
      Interpleader — action foi' goods sold, — denial of liability to the plaintiff and admission that it exists to a third party sought to be interpleaded who disclaims any ■ right.
    
    A defendant, in an action to recover the purchase price of goods sold and delivered, who admits his liability and alleges that such liability is not to the plaintiff, but to a third party, a warrant of attachment against whom has been served upon the defendant, is not entitled, upon paying the purchase price into court, to an order substituting the sheriff and the attaching creditor as defendants in his stead, especially where the defendant gives no evidence tending to show that the third party is entitled to the purchase price, and the latter expressly disclaims any right or title thereto.
    Appeal by the plaintiff, the Southwark National Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of January, 1899, allowing the defendants to pay to the chamberlain of the city of New York $858.43, less $10 costs of motion, and directing that, upon such payment being made, the sheriff of the city and county of New York, Maurice O’Meara and Catherine Joyce be substituted as defendants in place of the present defendants, and that the latter be thereupon discharged from all liability to the plaintiff or to the parties thus substituted.
    
      Clifford W. Hartdridge, for the appellant.
    
      Charles N. Morgan, for the respondents.
   Barrett, J.:

The order appealed from speaks of the sum which the defendants are allowed to deposit as the fund in controversy herein.” The respondents seem to rely throughout upon this theory of the casé. There is, however, no such fund here. The action is simply upon a contract for the sale and delivery of goods. The defendants owe the price of the goods, and the sole question is with whom did they contract. The plaintiff alleges that the contract was made with it. The defendants distinctly deny this. They say “ that the contract of the defendants for the purchase of the goods, for the purchase price of which this action is brought, was not with plaintiff, but was with the Perseverance Manufacturing Company.” How, then, can they interplead the Perseverance Manufacturing Company, or the plaintiffs in the attachments against that company, or the sheriff who held these attachments? They simply deny the plaintiff’s right, and state that they have a perfect defense to this action. That would seem at once to defeat their claim to inter-plead. But even if the defendants, admitting the sale and delivery of the goods, had declared that they did not know who the real principal was, still the substitution should not have been granted in view of the express disclaimer of the Perseverance Manufacturing Company. That company explicitly disavows the position of principal, and insists that it acted solely as the agent for the plaintiff in the sale of the goods. What possible danger, then, can the defendants run in paying what they thus without question owe to the plaintiff ? It is true that the sheriff has served upon the defendants copies of the warrant of attachment issued against the Perseverance Manufacturing Company. If, however, the latter company has no right of action against the defendants, nothing has been attached. The plaintiffs in these attachments and the sheriff may possibly, notwithstanding the disavowal of the Perseverance Manufacturing Company, contend that the latter company was the real principal in the sale of the goods and that the defendants are liable to it. But in the entire absence of any fact to support that possible contention, there is no warrant for an interpleader.

Rot a particle of evidence is furnished even tending to show that the Perseverance Manufacturing Company was the principal in the transaction. The defendant Eversley Childs deposes that the relationship existing between the plaintiff and the Perseverance Manufacturing Company in respect of said transactions are entirely unknown to defendants.” Tims the only light thrown upon these relations is afforded by the affidavits of the plaintiff’s president and the vice-president of the Perseverance Manufacturing Company. These affidavits show beyond question that the plaintiff was sole principal in the transaction, and, indeed, that the defendants were fully informed of that fact. The rule is well settled that, to justify an interpleader under section 820 of the Code of Civil Procedure, the defendant must show that the claim antagonistic to that of the plaintiff has some reasonable foundation. It may be said here, as was said in Stevenson v. N. Y. Life Ins. Co. (10 App. Div. 233): Some facts or circumstances must be stated which throw some doubt upon the right of the plaintiff to recover the money sued for.”

The application should, therefore, have been denied, first, because the defendants, by their denial of any contract relation with the plaintiff, have placed themselves outside of the interpleader principle; and, second, because upon all the facts presented no reasonable doubt has been thrown upon the plaintiff’s right to recover.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, Patterson and O'Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  