Opinion
May, 1906.
Patrick J. O'Beirne, for appellant.
Harrison B. Weil, for respondent.
Joyce Drachman, for Harvey P. Miller, third party, sought to be interpleaded.
The plaintiff seeks to recover on an express employment and on a written agreement to pay. The action was for a broker's commission on a sale of real estate. The defendant states in his moving affidavit that he had employed one Miller to make the sale; that a demand has been made against him for the sum of $550, and that the claim and demand made by the said Miller "is the same claim and demand made by the plaintiff." In this latter statement he is clearly wrong. Each claim is based upon a distinct contract alleged to have been made between the claimant and the defendant.
This is not a proper case for an interpleader. McCreery v. Inge, 49 A.D. 133; Cohen v. Cohen, 35 Misc. 206.
The order should be affirmed, with ten dollars costs and disbursements.
GILDERSLEEVE and DAVIS, JJ., concur.
Order affirmed, with costs and disbursements.