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May 12, 1964

The PENNSYLVANIA INSURANCE COMPANY et al., Interpleading Plaintiffs,
LONG ISLAND MARINE SUPPLY CORPORATION et al., Interpleaded Defendants. UNITED STATES of America, Plaintiff in Intervention, v. The PENNSYLVANIA INSURANCE COMPANY et al., Defendants in Intervention

The opinion of the court was delivered by: WYATT

This is a motion by interpleader plaintiffs for an order permitting their withdrawal, dismissing the action as to them, discharging them from liability, and directing payment to their attorneys of counsel fees and disbursements.

The action was commenced on April 7, 1961 by the four plaintiffs, which were styled 'interpleading plaintiffs' in the caption of the complaint as filed.

 The complaint averred that each insurance company plaintiff had issued a policy of fire insurance to defendant Long Island Marine Supply Corporation; that there was a fire loss under each policy on June 24, 1960; that the insured and each plaintiff had reached an agreement as to the amount payable under each policy and the aggregate of the amounts payable was $ 36,597.51; that claims to all or a part of the amount due under each policy had been made against each plaintiff by one or more of the defendants, styled 'interpleaded defendants'; that plaintiffs could not safely determine which claims to pay; that plaintiffs had no interest in the amounts due under the insurance policies but were 'mere stakeholders'; and that the $ 36,597.51 had been paid into the registry of the court. It was also averred that the total of the claims, 'exclusive of those by the insured and the tentative trustee to the entire proceeds', is $ 48,352.40.

 Jurisdiction was based on 28 U.S.C § 1335 (sometimes called the Federal Interpleader Act) and 'two or more adverse claimants' named as defendants were averred to be citizens of different states. This is sufficient to give the Court jurisdiction even though there is not diversity between plaintiffs and the defendants; indeed the citizenship of plaintiffs is not averred. Fed.R.Civ.P. 22(2).

 The prayer for relief included a prayer that plaintiffs be discharged from liability and awarded their reasonable costs, attorney's fees, etc.

 Service of the summons and the complaint was made on all named defendants.

 It is represented by movant that the 'interpleaded defendants who had held the insured premises and the insurance policies having gone into arrangement proceedings in the Eastern District of this Court, by order of the Court all further action in the Court herein was stayed. This order was dated the 18th day of January, 1961.

 'In April, 1962 this stay was vacated * * *'.

 It is not clear what this means, but I assume that it is intended to aver that the assured filed a Chapter XI petition in the United States District Court for the Eastern District of New York and that an order of that Court stayed all proceedings in this Court from January 18, 1961 to 'April, 1962'. 11 U.S.C. 701 and following, 714. In any event there has been no relevant stay since April 1962.

 The United States, named as a defendant, thereafter moved (a) to dismiss the action as against it because it had not consented to be sued in interpleader and (b) for leave under Fed.R.Civ.P. 24 to intervene as a plaintiff and to serve a complaint setting forth the government's claim. This motion was granted on default; the order granting the motion was filed on November 5, 1962.

 The government thereafter served its 'complaint in intervention', as a result of which the caption of the action was devised in the form as it now appears and all the parties to the action except for the government are styled 'Defendants in Intervention' in the lower part of the caption. Whether this is the most exact and appropriate method to plead need not be decided. The substance of the government's claim as intervenor is that there are tax liens under 26 U.S.C. §§ 6321, 6322 on the money deposited by plaintiffs in the registry of court; the government asks under 26 U.S.C. § 7403 for foreclosure of the lien on this money.

 Plaintiffs thereafter moved for leave to amend the summons and complaint and also the government's 'complaint in intervention' by adding Dexter Axle Company, Inc. as a defendant on the asserted ground that counsel for defendant Standard Financial Corporation had advised counsel for plaintiffs that 'the claim described in the complaint is owned by Dexter Axle Co., Inc.' although 'said Dexter Axle Co. Inc. has not formally nor in writing served any notice of claim with respect to this chose in action'. This motion was granted on consent by order filed March 22, 1963. The amended summons and complaint are said to have been served on all parties. What, if anything, happened to the 'complaint in intervention' does not appear.

 An action of interpleader has two separate and consecutive steps: first, the determination whether plaintiff is entitled to the relief sought, including discharge; and second, the determination of the adverse claims as between the interpleaded defendants. See ...

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