In the ordinary case of rival brokers claiming a commission, interpleader is proper, but not so where the employer has, by his conduct, left himself open to liability to both rival brokers. Where the owner or lessor in the ordinary way submitted his property to several brokers for sale or for rental, the owner is not responsible for the fact that two brokers undertook negotiations with the same prospective purchaser or lessee, especially where each of the brokers knows that the other is endeavoring to interest the same prospective purchaser or tenant. Where the owner or lessor admits his liability to either one of the two brokers, he may be released upon the payment of the money into court and interpleading the adverse claimant.1
But the defendant is not entitled to an order of interpleader merely because two claims are made against him for the same debt, but the two claims must be of such a nature that he cannot determine the validity of the claims without hazard. In this sense, the making or withholding of the order rests within the sound discretion of the court.2
And so, on a motion for interpleader, it is not enough to show that a claim is made against the vendor by another broker for payment of an amount of money equal to the sum claimed by the broker who sues the vendor for the commission. It should be shown that the broker who also claims the commission has some foundation for his claim, and that the vendor cannot determine without risk to whom the commission should be paid. A mere assertion of a claim is not enough to sustain an order of interpleader. It should also be shown that the two different brokers claiming the commission are not claiming under separate agreements.3
Where, in an action for interpleader brought under Sec. 820a of the New York Code of Civil Procedure, the complaint follows the requirements of said section, but nothing whatever is stated either in the complaint or the affidavits showing the basis of the claims of the defendants beyond the mere statement that they all assert claims and have made demands upon the plaintiff, the plaintiff's motion for leave to pay into court should be denied. "It is necessary to sustain an action of interpleader or a motion under the Code to show that the alleged claims have, or in case of a motion the claim of a third person has, some reasonable basis on which to rest. While it has never been held that it is necessary to sustain an interpleader to show that a claimant will probably succeed in establishing his claim, a mere assertion of claim by another without alleging anything whatever on which to base it is not enough." Although it may not be necessary in such action that the complaint should state the facts tending to show that the conflicting claims to the fund rest upon a reasonable basis, such facts should be set forth by affidavit upon the motion for leave to pay into court.4
1 Fox v. Cammeyer, 93 Misc. 180; 156 N. Y. Suppl. 1046 (1916). 2 Mitchell v. Catlin Co., 71 Misc., 450; 128 N. Y. Suppl. 692 (1911). 3 Cross v. Ludin Realty Co., 90 Misc. 606; 154 N. Y. Suppl. 26 (1915); Gonia v. O'Brien, 223 Mass. 177; 111 N. E. 787 (1915).
In Smith v. Fowler,5 a case in which the owner brought the commission into court because of conflicting claims thereto, it was said, "No one attacked or denied his (the owner's) right to interplead the different claimants in the lower court, and, if there was any force or strength in the contention that an interpleader should not have been allowed, the. matter cannot be raised for the first time in this court."
4 Sulzberger v. Seklir. 15.1 App. Div. 749; 138 N. Y. Suppl. 691 (1912). 5 57 Tex. Civ. App. 356; 122 S. W. 598 (1909).