New York County NyArchives Court.....Felix, Dreyfus Vs. William Casey 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

FELIX DREYFUS, Appellant, v. WILLIAM C. CASEY, Respondent.

Code of Civil Procedure, sec. 820—substitution of parties making claims to the 
subject-matter of the action.

Under section 820 of the Code of Civil Procedure, providing that the defendant, 
against whom an action to recover a chattel is pending, at any time before 
answering, upon proof by affidavit that a person not a party to the action makes 
a demand against him for the same property, without collusion with him, may 
apply to have such person substituted in his place, it is only necessary to show 
on such motion that the person not a party to the action makes a demand for the 
same debt or property without collusion with the defendant, and no proof as to 
the validity or sufficiency of his claim is required.

This section creates a distinction between proceedings taken under its 
provisions and those had in an action in the nature of interpleader, in which 
latter case it is necessary to show that the claim interposed is substantial and 
will probably be successful.

Appeal by the plaintiff from an order, made at a Special Term of the Supreme 
Court, entered in the clerk's office of the county of New York on December 3, 
1888, substituting, in the place and stead of the defendant Casey, James E. 
Carpenter as receiver of the property of Maurice Lillenthal, as defendant herein.

Otto Herwitz, for the appellant.

Clarence R. Conger, for the respondent.

Brady, J.:

This action, which was of claim and delivery, was brought to recover several 
cases of goods, which were then in the storage warehouse of the defendant, and 
the sheriff took possession of the property, which he still retained when the 
motion to interplead was made. The receiver claimed the property on the ground 
that it had been fraudulently disposed of by Lillenthal, and, therefore, 
authorized the application on behalf of the creditors whom he represented.

The application seems to have been made in good faith, without collusion with 
the defendant or anyone else, and in the discharge of a duty imposed upon him by 
his appointment as receiver. It was resisted upon the ground that it was not 
shown, as it should have been by appropriate evidence, that the claim interposed 
against the plaintiff would probably be successful, and that its merits should 
have been examined for the purpose of determining that question; and, further, 
that if the merits had been examined upon the facts and the law, the result 
would have been a denial of the remedy sought. The argument on behalf of the 
appellant, although elaborate, seems to have overlooked the peculiar provisions 
of section 820 of the Code of Civil Procedure, and the effect of it where 
adverse claims are made in an action kindred to this. By that section it is 
provided that a defendant against whom an action to recover a chattel is 
pending, at any time before answer upon proof by affidavit that a person not a 
party to the action makes a demand against him for the same property, without 
collusion with him, may apply to the court, upon notice to that person and the 
adverse party, for an order to substitute that person in his place and to 
discharge him from liability to either by delivering possession of the property 
or its value to such person as the court directs. And it further provides that 
the court may, in its discretion, make such an order. This section was 
considered and interpreted in Bowery National Bank v. The Mayor (reported in 4 
New York State Reporter, 565); and it was there declared that the right of the 
defendant to succeed in an application made under its provisions was not 
restricted to demands which might probably be made successfully against the 
subject of the controversy. It was only necessary for the defendant to show, in 
order to avail himself of its provisions, that a person not a party to the 
action makes a demand for the same debt or property, without collusion with him. 
The section, it will be observed, applies only to proceedings by motion and by a 
defendant, as is said in the case of the Baltimore and Ohio Railroad Company v. 
Arthur (90 N. Y., 237).

The facts required by the section under consideration having been established, 
and the judge in the court below having, in the exercise of his discretion, made 
the order asked for, it cannot be disturbed unless it appears that the 
discretion exercised was abused. There is nothing in the case to justify such a 
conclusion. The effect of the section, it must also be observed, is to create a 
distinction under its provisions and an action in the nature of an interpleader, 
for the reason that in the latter it is necessary to show that the claim 
interposed is substantial and will probably be successful, in order to entitle 
the plaintiff to maintain his action as illustrated by the case of the Nassau 
Bank v. Yandes (44 Hun, 55 and the cases cited). The decision in Vosburgh v. 
Huntington, made at Special Term (15 Abb. Pr., 254), is not in conflict with the 
views herein expressed, but if by any interpretation it may be regarded as in 
conflict, it is sufficient to say of it, as suggested by the learned judge in 
the court below, that it is overruled by the case of the Bowery Savings Bank v. 
The Mayor (supra). And it may be further observed with regard to it, that it 
does not consider the precise question herein discussed as paramount in 
importance.

We have, therefore, presented to us as responsive to this appeal, the section to 
which reference has been made, its interpretation by this court, the statement 
of the necessary facts by the defendant to invoke its aid under that section, 
and, therefore, the order granted must be declared to have been properly 
directed in that respect. It is, nevertheless, incumbent upon us to say, 
further, that the order entered upon the application is deficient in not stating 
what shall be done with the property during the pendency of the action. This may 
be supplied on application, however, to amend, and does not affect the propriety 
of the order allowing the substitution ordered.
For these reasons the order appealed from should be affirmed, but we think, 
under the circumstances disclosed, without costs.

Daniels, J., concurred; Van Brunt, P. J., concurred in the result.

Order affirmed, without costs. 

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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