Cross & Brown Co. v. Ludin Realty Co.

Whitaker, J. The facts in this case are as follows: The plaintiff caused a summons to be issued out of the Municipal Court against the Ludin Realty Company as defendant. The summons was returnable on March 12, 1915 and was served on the defendant realty company on March 2, 1915, together with a verified complaint setting.forth that the realty company was indebted to the plaintiff in the sum of $105 for broker’s commissions for procuring a tenant for certain premises owned by said company. On March 4, 1915, the realty company made a motion for an order inter-pleading said Louis C. ¡Schliep, and permitting said realty company to pay the amount of plaintiff’s claim into court. The affidavit upon which this order was based is wholly insufficient to authorize an order of interpleader. It alleges that a claim has been made upon the realty company by Schliep for payment of an amount of money equal to the sum claimed by plaintiff, but it utterly fails to show that this claim has the slightest foundation or thafithe realty company cannot determine without risk to whom the fund should be paid. A mere assertion of a claim is not enough to sustain the order. Pouch v. Prudential Ins. Co., 204 [608] N. Y. 281. The affidavit also fails to show that plaintiff and Schliep were not claiming under separate contracts. Upon the hearing of the motion for the order of interpleader, the plaintiff appeared and filed an affidavit in which it set forth by its president that Schliep was unknown to it and so far as it knew had no connection with the transaction. There is nothing in the record before this court showing that Schliep appeared on the hearing although it is shown that the “ affidavit and notice of motion ” were served on him on March 5, 1915. On March 12, 1915, an order was entered to the effect that upon payment into court by the defendant Ludin Realty Company of the sum of $105 and interest said Louis 'C. Schliep be substituted as said defendant in the above action in place of the defendant Ludin Realty Company. It also provided as follows: 1 ‘ Ordered that the plaintiff have leave to amend the summons and complaint or to serve a supplemental summons and complaint herein in such-manner as it may be advised within five (5') days after service upon its attorneys of a copy of this order with notice of entry,-and that it serve a copy of the said amended summons and complaint upon said Louis C. Schliep; and unless the said Louis C. Schliep, the substituted defendant herein, shall appear and answer the said complaint within six (6) days after service thereof, the said substituted defendant be debarred from all claim or title to the fund "deposited as aforesaid. It is further “ Ordered that the above-entitled action be adjourned to the 23d day of March, 1915, upon the calendar of this court for trial. ’ ’ It nowhere appears in the return that any summons was ever served upon Schliep and the return declares that upon the adjourned day “ the plaintiff took judg [609] ment on the verified complaint.” Apparently no one appeared for either the realty company or Schliep. It is undisputed that upon this judgment the plaintiff obtained the possession of the fund theretofore paid into court by the realty company. The practice in cases of interpleader is clear. “ The order should require him to appear and answer the complaint in the same time that a defendant is required to answer a summons ” (McElroy v. Baer, 13 Daly, 442; Greenblatt v. Mendelsohn, 46 Misc. Rep. 554) and the order in this case expressly provided “ and that it serve a copy of said amended summons and complaint upon said Louis C. Schliep.” By the failure to comply with this order and the entry of the judgment aforesaid, Schliep is foreclosed of his right to establish a claim to the fund, and the judgment so entered is absolutely void. A void judgment may be appealed from (Catlin v. Rundel, 1 App. Div. 157; Wands v. Robarge, 24 Misc. Rep. 273) and a void judgment may be considered in existence for the purpose of permitting the Appellate Term to reverse. Loeb v. Smith, 24 Misc. Rep. 200. Judgment and order reversed, with costs against the plaintiff, and new trial ordered. The plaintiff is also directed to restore the fund to the custody of the Municipal Court within "five days after the service of a copy of the order entered herein with notice of entry thereof. Guy and Lehman, JJ., concur. Judgment and order reversed, with costs.