Williamsburgh Savings Bank v. Avery

Full title: THE WILLIAMSBURGH SAVINGS BANK, Respondent, v. WALTER AVERY, Appellant…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 23, 1940

260 App. Div. 1047 (N.Y. App. Div. 1940)

Opinion

December 23, 1940.

Defendant Walter Avery appeals from an order made in an action of interpleader brought by the plaintiff against the appealing defendant and another. Order affirmed, with ten dollars costs and disbursements. No opinion.

Hagarty, Carswell and Close, JJ., concur; Lazansky, P.J., and Taylor, J., dissent, vote to reverse the order appealed from, and to deny the plaintiff's motion for an interpleader, with the following memorandum:

This is not a case for interpleader. The plaintiff bank is not an impartial stake-holder. The effect of the stipulation relating to brokerage, contained in the contract of sale, is to make the respondent liable to the defendant Avery therefor. The same stipulation makes the vendee an indemnitor of the respondent as against the claim of Portnoi for brokerage, if the respondent shall pay Avery. That circumstance, however, does not place the respondent in the position of one who rightly seeks to avoid a double payment where only one brokerage is due. The respondent may be liable to both claimants. By the stipulation, in effect the respondent determined for itself that it was liable to Avery and incurred such liability to him. The respondent should be held to that obligation and left to its remedy under the indemnity thus provided by the vendee, if subsequently the respondent shall be held liable to Portnoi.