Carroll v. Demarest

Patterson, J.: These actions were brought to recover commissions or brokerage, each plaintiff claiming that he was employed by the defendants to procure a tenant for certain hotel premises in the city of NTew York." The plaintiff Carroll claimed to be entitled to the sum of $5,350 for services in procuring one Robert H. Rivers as such tenant. The [156] plaintiff Ward sued upon two causes of action—the first to recover the sum of $5,250 for procuring a tenant for the defendants, and the second to recover $750 as commissions for effecting a sale, at the request of the defendants, of certain personal property and furniture in said premises. The defendants moved to interplead the plaintiffs, averring that they each claimed commissions for the same service in procuring the tenant; that the amount demanded By each plaintiff for that particular service: is owing to one of them By the defendants, but that they do not know which of the plaintiffs is entitled to the amount, and they cannot- safely determine to which it should be paid, or make payment to one without danger of being liable to the other for the same claim. The motion for an inter-pleader was denied on the ground that. the complaints in the two actions do not show that the commissions claimed are for the pro-, cm'ement of the same tenant. That fact does not appear from the complaints, but it is made to appear by affidavit of- McKee, and does not seem to be denied, that the claim asserted by each of the plaintiffs for procuring a tenant relates to the same tenant, viz., Rivers. But while the order appealed from,may not be sustainable upon the ground upon which the motion was denied, yet it is apparent that the controversies of the parties are not in all respect^ over the same matters. The amount-claimed by Ward is $6,000. All the defendants have offered to pay into court is the amount claimed by Carroll in his action, which is the same amount claimed by Ward in the first cause of action set forth in his complaint. An interpleader under those circumstances would not discharge the. defendants from full liability in each action, nor finally settle the controversy. Ward’s claim is more extensive than Carroll’s, and is upon two contracts of employment instead of one. The causes, therefore, were not in a situation in which the demands made by separate plaintiffs upon the defendants could be settled and finally determined in a ■contest between those plaintiffs, and for this reason the court properly exercised the discretion given' by section 820 of the Code of ■Civil Procedure in denying .the motion. The order must be affirmed,, with ten dollars costs and' disbursements. O’Bbien, Ingeaham and McLaughlin, JJ"., concurred. Order affirmed, with ten dollars costs and disbursements.