Gulf Oil Corp. v. Helmus Construction Corp. , 23 Misc. 2d 816 ( 1960 )

Joseph A. Gavagan, J.

In an action for interpleader under section 285 of the Civil Practice Act, a temporary injunction is sought restraining the defendants from bringing or proceeding with any action against the plaintiffs. It appears that the plaintiffs contracted with defendant Helmus Construction Corporation, as general contractor, for the construction of three gasoline service stations and Helmus, in turn, contracted with the other 15 defendants, except defendant the United States, to act as subcontractors in such construction. Helmus, it is alleged, received progress payments from the plaintiffs but failed to pay the subcontractors therefrom, and their suits and claims are numerous and brought in various forums.

The motion, having been withdrawn by stipulation against defendant the United States, is opposed only by defendants I. & P. Baronie Paving Corp. and Yeselson Bros. Ine. Baronie has heretofore instituted two actions in the Municipal Court, Borough of Queens. There, after the entry of judgment against the general contractor, Helmus, and execution thereon, leave was granted Baronie to bring action on such judgments against Gulf Oil Corporation, one of the plaintiffs herein. Gulf filed a notice of appeal to the Appellate Term, Second Department, and applied to that court for a stay pending appeal. The application for a stay was denied and Gulf proceeded to examine Baronie before trial in the Municipal Court actions.

A notice of trial, demanding a jury, has been served in each action and the trials have been set down by stipulation for March 8, 1960.

The purpose of the new interpleader practice- is to avoid multiplicity of actions and to permit multiple claims against one party to be litigated in one action. However, on this motion as on a motion for consolidation, the court should consider whether the relief requested will cause a party to suffer the loss of any substantial right. Under the circumstances here, serious prejudice will result if Baronie is restrained from proceeding with the Municipal Court actions where early trials may be obtained.

No action has been brought, as yet, on the Yeselson claims for $281.

The motion is, accordingly, disposed of as follows: denied as to Baronie; granted as to Yeselson; granted without opposition as to all other defendants except the United States; and withdrawn as to the United States. Settle order.