Opinion
283 A.D. 86 126 N.Y.S.2d 340 ROBERT JOSEPHs&sCOMPANY, INC., Respondent, v. MYRTLE G. HIRSCH et al., Doing Business under the Name of BELAND REALTY CO., Defendants and Third-Party Plaintiffs-Appellants, and LOUIS RAIT, INC., Third-Party Defendant. Supreme Court of New York, First Department. December 8, 1953
APPEAL from an order of the Supreme Court at Special Term (BRADY, J.), entered July 28, 1953, in New York County, which denied a motion by defendants and third-party plaintiffs for an order granting interpleader and directing that Plaza Realty Co. be impleaded and joined in this action as codefendant. The second portion of the first sentence of section 287 of the Civil Practice Act provides that a defendant may apply to interplead another where: 'or, upon it appearing that the defendant disputes in whole or in part the liability as asserted against him by different claimants or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as co-defendants with him in the action.'
COUNSEL
Morton G. Rosenberg of counsel (Herbert Stern with him on the brief; Karelsen, Karelsen, Rosenbergs&sBaum, attorneys), for respondent.
Seymour C. Simon of counsel (Dreyers&sTraub, attorneys), for appellants.
Per Curiam.
The circumstances in this case would seem to warrant interpleader. Plaintiff a broker is suing for $5,400 commissions for negotiating a long term lease of defendants' premises to Louis Rait, Inc. The lease contained a recital that 'Landlord and Tenant agree that Plaza Realty Company was the sole broker instrumental in consummating the within lease.' The tenant had signed a representation that Plaza was the sole broker, and Plaza had agreed that it had procured the lease and would accept $2,500 for commissions.
It thus appears that there is but one transaction, i.e., the executed lease to Louis Rait, Inc., upon which commissions have been earned. The dispute is whether plaintiff or Plaza earned the same and to what amount. There are no facts presently disclosed that would indicate any likelihood of liability for commissions to both brokers.
Defendants dispute any liability to plaintiff, and dispute liability for more than $2,500 to Plaza. The situation would thus seem to be one comprehended by the second portion of the first sentence of section 287 of the Civil Practice Act, and warrant joining Plaza as codefendant in the action. The defendants should be required to deposit $2,500 to the credit of the action. Plaintiff and Plaza may litigate their right to the said $2,500, and plaintiff may also litigate its right to recover from defendants the balance of $5,400 claimed as full commissions. An amended complaint may be served by plaintiff.
The order appealed from should be reversed, with $20 costs and disbursements and motion granted. Settle order.
PECK, P. J., DORE, COHN, CALLAHAN and BOTEIN, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted. Settle order on notice.