Opinion
November, 1914.
L.A. Jaffer, for appellant.
R.E. A.J. Prime (W.C. Prime, of counsel), for respondent.
There are no issues of fact raised in this appeal. The defendant herein was the attorney for one Tillie Drucker, who, in January, 1914, purchased some real estate from the plaintiff. At the time of the delivery of the deed there were violations upon the property which the plaintiff agreed to remove, and, as security for the removal of the same, deposited with the defendant the sum of $350 upon condition that if the violations were removed within sixty days the amount deposited should be returned; otherwise it was to be applied towards the expense of removal. At the expiration of the sixty days there remained one violation, and a controversy arose between the plaintiff and Drucker as to whether or not the plaintiff should give Drucker a guaranty to protect her from any claim that might be made by any of her tenants who might be disturbed by the plaintiff in removing this violation. The plaintiff, claiming that he had been prevented from removing the violation, brought this action against the defendant in the Municipal Court. Upon the return day of the summons the plaintiff pleaded orally, "money had and received," and the defendant a "general denial." At the same time the defendant asked the plaintiff to file a bill of particulars, setting forth the exact nature of his cause of action. The case was adjourned until May 14, 1914. That day, the defendant being confined to his bed by illness, his clerk filed an affidavit of this fact, and the case was again adjourned until May 26, 1914. In the meantime the plaintiff had filed a bill of particulars, which set forth with exactitude his claim, and in which he admitted that one violation upon the premises sold by him had not been removed. The defendant thereupon made a motion, returnable upon May twenty-sixth, the same day to which the case had been adjourned, for an order permitting him to pay into court said sum of $350 and to interplead Tillie Drucker, and also to be permitted to amend his answer by setting up "Defect of parties defendant." Another attorney, representing Tillie Drucker, filed a written consent on her part to such interpleader. The plaintiff's attorney, however, interposed the objection that the right of defendant to interplead Tillie Drucker was lost, as by section 187 of the Municipal Court Act an application for leave to interplead must be made "before answer."
The court below held that it was without power to make an order of interpleader, but granted the motion to allow the answer to be amended, but as a condition for granting such amendment, and for an adjournment asked for by defendant, required the defendant to deposit the sum of $350 into court, and also to stipulate that Tillie Drucker would appear on May twenty-eighth, answer the complaint, and proceed to trial on that day. The case was set for trial at two P.M. on May twenty-eighth, owing to the engagement of defendant in the trial of another action in the forenoon of that day. When the case was called for trial at two P.M. a clerk of the defendant asked for an adjournment, and filed an affidavit, setting forth the engagement aforesaid of defendant, and also showing the absence of a material and necessary witness. This adjournment was refused, and an inquest taken. Upon the motion made to open the default it also appeared that defendant returned to his office about three P.M. of May twenty-eighth, at the conclusion of his first engagement; that he was there called on the telephone from Lancaster, Penn., and informed that his presence was required in that place at once, owing to the dangerous illness of his son, who was there attending school; that he so informed plaintiff's attorney over the telephone at the court-house, where this case was being held, and that defendant then immediately left the city for Lancaster.
We think the application for leave to interplead Tillie Drucker should have been granted, although we are powerless to review the order upon an appeal from an order denying a motion to open a default. The oral pleading of the plaintiff was indefinite and uncertain and set forth no cause of action. Reed v. Landau, 115 N.Y.S. 1068; Daub Storage Warehouse Van Co. v. Fitzhenry, 70 Misc. 220; Weiner v. Yale Knitting Mills, 138 A.D. 533.
Until the bill of particulars was filed the defendant had no definite knowledge of the plaintiff's claim. The allowance of the amended answer superseded any former answer ( Mayham v. Parker, 81 Misc. 400), and the application for leave to interplead was made prior to the granting leave to amend the original answer and should have been granted.
Order denying motion to open default reversed, judgment vacated, and new trial ordered, with costs to the appellant to abide the event.
Present: SEABURY, BIJUR and COHALAN, JJ.
Order reversed, judgment vacated and new trial ordered, with costs to appellant to abide event.