Borst a. Baldwin.

L. H. Van Schaick, for the plaintiff.

Wm. B. Leeds, for the defendant.

SUTHERLAND, J.-The plaintiff had a claim arising on contract against the defendant George D. Baldwin and one William H. Adams, who were copartners under the firm name of Adams & Baldwin, as bank-note engravers, for three thousand dollars, and which claim the plaintiff assigned to one John C. Ansman.

Ansman, as assignee, brought an action in this court on the claim against Adams & Baldwin; and issue being joined therein, the action was noticed for trial at the circuit.

Baldwin proposed to the plaintiff, acting, as alleged, as the agent of Ansman in the management of the action, and in relation to the subject-matter thereof, a settlement of the suit; and it was settled, by judgment being permitted to be entered up against the defendants in the action for $1361.21, in pursu ance of, and upon the terms and conditions of a written agreement entered into between the parties.

By this agreement, Ansman stipulated to enforce the collec tion of the judgment out of the separate property of Adams, and not out of the property of Baldwin, and to use all lawful means, by execution and supplemental proceedings, to enforce the collection of the judgment out of the property of Adams; and Baldwin agreed to pay Ansman in bank-note engraving and printing on demand, a sum not exceeding $680,62, or any deficiency less than that sun, which could not be collected out of Adams; and on payment of such deficiency, not exceeding $680, Baldwin was to be released from the judgment.

The complaint in this case, after alleging substantially these facts, alleges that this settlement, and the agreement under which the judgment was entered, were all brought about by the fraud of Baldwin, setting out the facts and circumstances, and the alleged false representations of Baldwin to show the fraud; that Adams was insolvent, and Baldwin knew it; that nothing had been or could be collected of Adams, although execution had been issued on the judgment, and supplemental proceedings instituted against him; that Baldwin's fraud was first discovered by Ansman and the plaintiff when the execution was issued; that Baldwin was and is responsible, and the claim

Borst a. Baldwin.

could have been, and could now be collected of him; that before the commencement of the action, the said "Ansman, for a valuable consideration, sold, assigned, and transferred the said judgment" against Adams & Baldwin to the plaintiff; and that the said Adams & Baldwin are indebted to the plaintiff on the judgment in the sum of $1465.01, with interest thereon from 28th November, 1856.

On these facts the plaintiff asks in his complaint that the said stipulation or agreement may be set aside, and declared null and void, and for such other relief as the court may think proper to grant.

The defendant demurs, on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The question, and the only question raised by the demurrer is, whether the plaintiff, as the assignee of the judgment merely, conceding Ansman's right on the discovery of the fraud to bring this action, and ask for the relief asked for by the plaintiff, can bring the action, or has any right to such relief.

Ansman, on his discovery of the fraud, could have consid ered the judgment void or voidable, and could have instituted an action or proceedings to set aside the stipulation and judgment, and have them declared void on the ground of the fraud; or he could affirm the judgment and stipulation, and hold Baldwin personally responsible in an action for the deceit or fraud.

Ansman's assignment of the judgment to the plaintiff was an affirmance of the judgment by Ansman, and may have left in him the action or right of action against Baldwin for the fraud; but the assignment of the judgment could not carry with it this right of action for the fraud, nor was it susceptible of assignment, so as to give the assignee a right of action in his own name. (Zabriskie a. Smith, 3 Kern., 322.)

The plaintiff took the judgment with knowledge of the stipu lation restricting its operation, and must be presumed to have taken it subject to the stipulation, and in fact, to have taken the stipulation as a part of the judgment; and it would be very extraordinary, if it could be presumed that the plaintiff took under the assignment of the judgment a right at the same time, and by the same assignment, to attack and repudiate the judg

ment.

VOL VIIL-23

Wilson a. Duncan.

In my opinion, the complaint shows no cause of action in the plaintiff; and the defendant must have judgment on the demurrer, with costs.

WILSON a. DUNCAN.

New York Superior Court; Special Term, February, 1859.

INTERPLEADER.-MOTION TO SUBSTITUTE ADVERSE CLAIMANT AS DEFENDANT.

In an action brought in the New York Superior Court to recover from the defendants moneys deposited with them by the plaintiffs' assignors, the defendants showed that after the action was brought they had been served with an attach¦ ment in an other action, by parties claiming the fund, and that there was also another suit pending in the Supreme Court by claimants on behalf of creditors, seeking to set aside the assignment which was the ground of the claim of the plaintiffs in this action.

Held, that their motion to substitute such claimants as defendants must be granted.

Motion, under section 122 of the Code, to substitute the persons named in place of the defendants.

Mr. Laroque, for the application by defendants.

Mr. Brady, for the plaintiffs.

Mr. Field, for Paige & Company.

HOFFMAN, J.-The first view of the case is upon the moving papers; the next, how it is affected by the proceedings in the Supreme Court, and other facts stated in opposition :

The plaintiffs are assignees of L. O. Wilson & Co.: the defendants had received large sums of money as the bankers of such firm, and have a balance in hand of $52,909.10, which the plaintiffs demand in this action: the assignment is dated the 30th of June, 1858, and on the 1st of July, 1858, a written notice was delivered to the defendants, signed by L. O. Wilson & Co., apprising them of the assignment, and that they were

Wilson a. Duncan.

authorized to transfer the balance to such assignees. This suit was commenced on the 3d of February, 1859.

In September, 1858, payment of over the sum of $21,000 was made to the plaintiffs by the defendants on account; and on the 16th of September, 1858, a demand was made for the balance.

Before this demand, the defendants received notice from the firm of J. N. Paige & Co., dated the 3d of July, 1858, stating, that they claimed a lien upon all the effects of the firm of L. O. Wilson & Co., by reason of a special agreement made in October preceding, and that any assignment was subordinate to their claim, which amounted to upwards of $49,000.

And on the 3d of August an attachment issued out of this court, dated the 1st of July, 1858, and was served upon the defendants by the sheriff. The application recited is for an attachment against the property of Lewis O. Wilson, impleaded, &c. It recites that Lewis O. Wilson is not a resident of the State, and commands the sheriff " to attach the property of the said defendant, Lewis O. Wilson." It is for the sum of $40,581.86.

The moving papers set forth also an attachment issued out of the Supreme Court, and served upon the defendants by Paige & Co., to which I need not now further advert. The sheriff, it seems, has collected money enough to answer it.

One other fact is taken from the other papers used. The suit in this court on which the attachment issued, was against the firm of Lewis O. Wilson & Co., composed of Burchard, and four others. This interprets the clause in the attachment, "Lewis O. Wilson impleaded with others." This suit was commenced early in July; the complaint is sworn to on the 1st, and the answer served on the 20th.

Another point is to be noticed, which was dwelt upon in the Supreme Court as of importance. It was sworn on information and belief, that the defendants here had, on the 1st of July, transferred the fund in their hands to the credit of the plaintiffs, the assignees. This is fully met and denied.. The fund on the 3d, of August, the time of the service of the attachment, remained. to the credit of L. O. Wilson & Co.

The action of Paige & Co. in the Supreme Court was (by a supplemental complaint) framed so as to aim at setting aside: the assignment to the present plaintiffs.

Such is the case, as far as it is now necessary to present it.

Wilson a. Duncan.

The plaintiffs bring their action here as assignees to recover the fund. The defendants show clearly that they are mere stakeholders, owing no duty, nor having incurred any liability to the plaintiffs which would bring the case within a certain class of authorities. (Sherman a. Partridge, 4 Duer, 649.) They show that one suit being brought against them, they have been served with an attachment in another action by the sheriff; the parties in that action insisting upon a right to the fund. They show another suit proceeding in the Supreme Court by claimants on behalf of creditors at large, asking to set aside the assignment, which is the ground of the present plaintiff's claim. Are the defendants bound to judge of these conflicting claims, and pay one of them, or be embarrassed with two suits?

The ground of a bill of interpleader is, "that there is a conflict between two or more persons claiming the same debt or debts, and that the double claim has not been occasioned by the conduct of the person who is liable to discharge the debt or obligation. (Lord Chancellor in Desborough a. Harris, 31 Eng. L. & Eq., 592.)

There must be a positive claim on each side, and the case must not show that it is impossible for one of the claimants to prevail. See the strong language of Chancellor Walworth in Shaw a. Coster (8 Paige, 347, 348). The case itself merely settled that a sheriff could not file such a bill.

2. I have carefully considered what has passed in the Supreme Court, and I do not think any thing there interferes with granting the present application.

The plaintiffs, the assignees, bring the defendants into this court, and submit themselves thereby to what shall here be deemed legal and just. Again, the question as to the rights of Paige & Co., under their attachment in this court, does not arise upon any record in the other court. And again, the refusal to permit an interpleader in the Supreme Court may be placed upon the allegation of a transfer of the funds to the assignee, then sworn to, and now refuted.

Order granted that the defendants have liberty to deposit, &c., in the Trust Company; and on producing a certificate, &c., that an order be entered substituting and discharging as prayed. Ten dollars costs to be allowed applicant. Interest at the original rate agreed upon.