Alexander S. Bacon, Respondent, v. The American Surety Company of New York, Appellant

Alexander S. Bacon, Respondent, v. The American Surety Company of New York, Appellant. Service of an attachment on a principal judgment debtor binds the guarantors of the debt who are joint judgment debtor's with him — interpleader. Where a joint judgment is1 entered against a principal debtor and the guarantors of the debt, the service upon the principal judgment debtor of an attachment obtained against the judgment creditor is sufficient to bind all the judgment debtors, and in an action brought by the assignee of the judgment creditor upon the undertaking, given on an unsuccessful appeal by the guarantors from the judgment, the surety upon the undertaking is entitled, upon paying into court the amount of its liability, to have the attachment creditor, who had notified it of his alleged lien, substituted as defendant in its place and stead. ■ Appeal by the defendant, The American Surety Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24tli day of May, 1900, denying its motion to interplead Adolph Goldmark as a party defendant in its place and stead. Charles C. Marshall, for the appellant. George Edwvn Joseph, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: On the 9th of November, 1896, the Magnolia Metal Company recovered a judgment against the Sterlingworth Railway Supply Company and Frank W. Coolbaugh and Lewis R. Pomeroy for §10,651.82. The claim upon which it was recovered was against the supply company as principal and Coolbaugh and Pomeroy as guarantors; and the suit to recover the amount was begun in July, 1895, by an action against the supply company, and another against the guarantors, the two being consolidated on April 23,1896. Such being the condition of affairs, one Goldmark, in April, 1897, procured an attachment in an action brought by him against the Magnolia Metal Company and served it upon the supply company. This attachment, so far as appears, was valid and properly served, and the question of its validity should be left for determination on the trial. On the 2oth of January, 1898, the Magnolia Company assigned its claim against .the supply company and the two guarantors to Alexandei S. Bacon, the plaintiff herein. From the judgment against the supply company and the guarantors appeals were taken, and the defendant here gave the usual undertaking upon appeal, staying the proceedings upon the judgment. The judgment was affirmed, and thereupon Bacon, as assignee of the judgment, brought this action against the defendant as surety. Before this action was brought, however, the defendant had been notified by Goldmark of his attachment, and that he claimed a lien by virtue thereof on the judgment against the supply company. After Bacon had begun the suit, the defendant moved for an order of interpleader to substitute Goldmark as defendant, offering to pay the money which was due into court. This motion was denied, and from the order so entered this "appeal is taken. While it is questioned whether the debt upon which the judgment was recovered against the supply company and the guarantors was a debt of the supply company as principal and the other persons as guarantors or not, when the judgment was finally entered, it was a joint judgment which bound all the parties and upon which execution could only be issued against all. We think, therefore, that the service of the attachment against the principal debtor was sufficient to bind all the others, and the attachment then became an apparent outstanding lien not only against the supply company, hut against Coolbaugh and Pomeroy as well; and when the defendant received notice of this lien, it was entitled to protect itself against it, which could only be done by interpleading the attaching creditors. It is said that Goldmark has no standing in this action because he should be joined with the sheriff and is not; but that objection is not well taken, because the fact that he should join any one else with him is not a sufficient reason why this motion should not be granted against him alone. It appearing, therefore, that the surety company lias no interest beyond a liability for a sum of money to which two adverse parties make claim, it should he allowed to pay the money into court, thus freeing itself from the risk of á double liability and leaving the litigation where it properly belongs, between the two adverse parties who assert a right or lien in or to the fund. We think that the facts justified the granting of the motion for an interpleader and that the order denying it should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs. Patterson, Bumsey and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.