Opinion
March 21, 1919.
J. Howland Auchincloss, for the appellant.
Hugh M. Hewson [ Frederic N. Watriss with him on the brief], for the respondent.
The learned justice at Special Term says in his opinion that the Gillespie claim against Evans grows out of a transaction with which the defendant trust company had no connection, and that any claim which they may have against Evans growing out of a direct transaction, which does not include an assignment of the fund in the hands of the trust company must be sued for in a separate action. We think the learned judge was misled so that he overlooked the fact that the Gillespies assert, whether rightly or wrongly is of no moment, that Evans has broken the original agreement under which the deposits were made, by failing to "deposit with the Trust Company all payments received by him from the United States Government." In Gillespie's action against Evans and the trust company he demands an accounting with respect to all matters embraced in the joint venture, including any sums that may be deposited to the credit of said joint venture in the Guaranty Trust Company, and expressly demands that Evans account for all moneys received by him "under his said contract with the United States Government dated August 16, 1917." Whether interpleader would be proper on the sole ground that Evans had breached the joint venture agreement by failing to turn over the stock and profits of the Atlantic Loading Company enterprise, it is not necessary to determine. There is a direct charge that he has retained to his own use a large portion of the moneys received by him from the government under the original contract of August 16, 1917, and if this is true, he may have no right or interest in the twenty-four per centum of profits retained by the trust company for the benefit of Gillespie and himself.
It would seem, therefore, that the trust company is not bound to take the risk of the dispute between these joint venturers. The trust company has no interest in the matter other than to pay the money to the person lawfully entitled to it. The case seems to come within the express provisions of section 820 of the Code of Civil Procedure. The defendant offers proof that the Gillespies and the Evans Corporation make a demand upon it for the same debt sued for by the plaintiff. Section 199 of the Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369) provides (Subd. 1): "In all actions against any trust company to recover for moneys on deposit therewith, if there be any person or persons, not parties to the action, who claim the same fund, the court in which the action is pending, may, on the petition of such trust company, and upon eight days' notice to the plaintiff and such claimants, and without proof as to the merits of the claim, make an order amending the proceedings in the action by making such claimants parties defendant thereto; and the court shall thereupon proceed to determine the rights and interests of the several parties to the action in and to such funds. The remedy provided in this section shall be in addition to and not exclusive of that provided in section eight hundred and twenty of the Code of Civil Procedure." It is provided, in subdivision 2, that the deposit in controversy may be paid into court, in which case the trust company shall be struck out as a party to the action and its liability for such deposit shall cease. We think the record presents a case for interpleader under the Banking Law as well as under section 820 of the Code.
The order should be reversed, with ten dollars costs and disbursements, and the motion for interpleader granted, with ten dollars costs.
MILLS, RICH, PUTNAM and KELLY, JJ., concurred; JENKS, P.J., not voting.
Order reversed, with ten dollars costs and disbursements, and motion for interpleader granted, with ten dollars costs. Order to be settled on notice.