Strauss v. Grande Maison De Blanc, Inc.

Sherman, J. On April 28,1923, defendant entered into a written agreement with plaintiffs (who are what are termed “ customs attorneys ” admitted to practice before the United States Customs Court and the Treasury Department) whereby it constituted plain [84] tiffs their agents to secure refunds of excessive customs duties paid by it upon importations under the Tariff Act of 1922 and authorized them to file protests in its name and to use all lawful means to collect such refunds and agreed to pay them for their services one-third of the refunded amounts. On the following day defendant entered into a written agreement with Carl W. Stern (also a similarly licensed Custom House attorney) retaining him to represent it in connection with such claims as it might then or thereafter have for excess duties on its importations under the same tariff act, and authorizing him to file protests and prosecute the same in defendant’s name, agreeing to pay to him one-third of the amount of duties refunded on importations as to which protests were filed by Stern. Thus each was employed to file protests in defendant’s name and each claiming to have rendered services demanded one-third of the amount refunded. Defendant has paid neither nor has it deposited any fund in court. Plaintiffs brought this suit to recover an amount equal to one-third of the duties refunded to defendant by the United States government. Before answering, defendant moved to join Stern as a codefendant, virtually admitting, however, that it has no dispute with Stem and that it owes Stem the amount of the bill which he has heretofore presented to it. It has succeeded in bringing into this litigation, against his will, Stern, its conceded creditor, who objects to being required to participate in this action, the only object of which is the determination of whether defendant owes plaintiffs anything and, if so, the amount thereof. He appeals to this court, as do plaintiffs, who insist that they do not wish the presentation of their cause of action to the jury to be confused by the claims of a stranger to their contract. Neither contract for services refers to the other; each is a distinct engagement. It is not shown that the attorneys acted in concert in the work performed by them. Perhaps they did not. It is possible that each filed the necessary protests and each took steps to advance and promote defendant’s interests and the award may have been the result of the work of either or of both. Defendant may have deemed it wise to have both in its service. It may be required to pay both. It cannot be allowed to bring them, against their will, into the arena and pit them as parties against one another in the contest which actually exists only between plaintiffs and defendant. In so far as Stern is concerned, the litigation is totally unnecessary, for defendant substantially admits the validity of his claim. [85] There is nothing in either written contract which states that either attorney must, like a realty broker in certain-cases for brokerage upon a sale of real estate, be the actual procuring cause before he shall be entitled to any recompense whatsoever. All that plaintiffs were required to do was to file protests and render services under their agreement with defendant, and if the award followed, they became entitled to the stipulated stipend. Section 287 of the Civil Practice Act (formerly section 820 of the Code of Civil Procedure) is relied on to sustain the reversal by the Appellate Term of the order of the City Court which had denied defendant’s motion. That section relates to interpleader in a pending action, and reliance is placed upon the phrasing of the latter part of that section. This method of interpleader by order (Pouch v. Prudential Ins. Co., 204 N. Y. 281, 284) “ was not intended to create a new ground for interpleader, but to enable a person sued on a claim where an action of interpleader could be brought to bring the third person, making a claim to the fund or property, into court in a summary way.” The claims must be upon the “ same debt,” and it must appear that defendant “ disputes in whole or in part the liability as asserted against him by different claimants.” Then the court in its discretion may make such order upon such terms “as to costs and payments into court of the amount of the debt or part thereof * * * as may be just, and thereupon the entire controversy may be determined in the action.” (Civ. Prac. Act, § 287.) Apart from the fact that defendant’s application stands granted without the imposition of any terms whatever, the fundamental attributes of an interpleader are not present. Both claimants here may recover; Stern is party to no controversy whatever; the so-called debts in essence are not the same, for they are not, as it has been phrased, “ mutually exclusive ” (Clark v. Childs, 234 App. Div. 561) nor “ identical ” (Wood, Dolson Co., Inc., v. Leonett Realty Co., Inc., 227 id. 552); the fact that each claimant may recover upon his respective claim defeats defendant’s application. Nor does defendant show that it cannot determine without hazard to itself which claimant is alone entitled to payment, for it expresses no real doubt as to the validity of Stern’s claim: (Pouch v. Prudential Ins. Co., supra; Crane v. McDonald, 118 N. Y. 648.) Defendant does not show that “he is ignorant which claimant has the better right.” (Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234, 237.) Actually the only controversy here is the issue that will arise upon the complaint and such denials or defenses as may be pleaded in the answer to be served by defendant. [86] For these reasons the determination of the Appellate Term so far as appealed from should be reversed and the order of the City Court affirmed, with twenty dollars costs and disbursements to the appellants in this court, and ten dollars costs and disbursements in the Appellate Term. ■Finch, P. J., Merrell and McAvoy, JJ., concur; Martin, J., dissents and votes for affirmance.