196 A.D. 540, Rosenthal v. United Transp. Co.

Citation:196 A.D. 540
Case Date:April 29, 1921
Court:New York Supreme Court Appelate Division, First Department

Page 540

196 A.D. 540




Supreme Court of New York, First Department.

April 29, 1921

Page 541

APPEAL by the defendant, The United Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of November, 1920, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk's office on the 10th day of December, 1920, denying defendant's motion for a new trial made upon the minutes, and also from an order entered in said clerk's office on the 15th day of April, 1920, denying defendant's motion for an interpleader.


Twyman O. Abbott of counsel [F. C. Nickerson, attorney], for the appellant.

Mortimer M. Menken of counsel [Menken Brothers, attorneys], for the respondent.


The action is brought to recover of the defendant two-thirds of $5,000 which was received by the defendant as commission for the sale of the steamshipAmerican. This ship was owned by some parties in Halifax and was put in the hands of Simpson & Co., shipbrokers, in Boston, for sale. Simpson & Co. had an agent in New York by the name of Gallupe. The steamship was also put in the hands of the defendant for sale. Gallupe introduced the plaintiff to the defendant, and the plaintiff thereafter brought about the sale of the steamship for the sum of $35,000. Thirty thousand

Page 542

dollars was to be paid to the owners of the ship and the $5,000 was to be retained as commissions for the sale. Prior to the sale, however, the plaintiff received from the defendant the following paper:


'Steamship Agents

'17 Battery Place

'New York

'Cable Address: 'Uteco,' New York.

'Codes: Scott's A. B. C. Fifth Edition.

'5th September, 1919.


'18 Broadway,

'New York City:

'S. S. American.

'DEAR SIR.--We hereby agree to protect you for two-thirds (2/3) of the commissions accruing from the sale to be consummated through you of the S. S.American or two-thirds (2/3) of overage of $5,000.00 over the net purchase price to the owners of $30,000.

'Very truly yours,


'J. H. ROGERS, Treasurer.'

Some evidence was introduced to show that prior to this sale an agreement was made between the plaintiff and the defendant and Gallupe representing Simpson & Co., that the $5,000 commission, when received, should be received by the defendant and was to be divided into three equal parts, of which the defendant was to retain one part, and one-third was to be paid to the plaintiff and one-third to Simpson & Co. Simpson & Co. make claim against the defendant for their one-third under the agreement. After this action was commenced the defendant sought by motion to interplead Simpson & Co., and a man by the name of Berger who had also made a claim for the share of the commissions which were to be paid to the plaintiff. The claim of Berger was afterwards withdrawn. This motion for interpleader was at first denied for failure to serve notice thereof upon Simpson & Co., with leave to renew upon showing proper service. The motion was thereafter

Page 543

renewed upon service made upon Gallupe as representing Simpson & Co. This service is claimed to have been a proper service upon Simpson & Co., by reason of a power of attorney given by Simpson to Gallupe to receive all papers which might be served in this action. Gallupe was not an attorney. The Special Term denied this second motion for an interpleader and the notice of appeal seeks to review this order, as well as the judgment which was afterwards entered.

The order for interpleader was properly denied. In order to interplead a third party the defendant must make personal service upon the party to be interpleaded so as to bring that party within the...

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