Opinion
October, 1931.
Order, so far as it denies plaintiff's motion for an order of interpleader and for leave to deposit $1,351.82 with the clerk and thereupon be discharged from liability to defendants, reversed upon the law and the facts, with ten dollars costs and disbursements to appellant, payable by respondents Nenius, and motion granted to that extent, without costs. In all other respects the order is affirmed, without costs. The plaintiff has expressed a willingness to deposit the sum of $1,351.82 into court, to be paid to the claimant entitled thereto. The matter of counsel fee, disbursements and allowances is based upon contract and cannot be determined on this motion. If plaintiff insists upon these items, it may result in a dispute which would make an order of interpleader unavailable to it. While the only defendants before the court indicate a willingness to have these items fixed and allowed, the other defendants are silent with reference thereto. Lazansky, P.J., Young, Kapper, Carswell and Davis, JJ., concur.