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January 14, 1963

The HOME INSURANCE COMPANY, and American Central Insurance Company, Plaintiffs,
B. B. RIDER CORPORATION et al., Defendants

The opinion of the court was delivered by: WORTENDYKE

The complaint in this action brings it within the jurisdiction conferred upon this Court by the provisions of 28 U.S.C. ยง 1335.

Some time prior to January 1, 1960 each of the two plaintiff fire insurance companies (Home and American Central) issued a fire insurance policy to H M T Corp. (T/A Jada Club).

 A fire occurred on January 1, 1960 in the insured property, and the loss under each of the two fire policies was ultimately adjusted to the respective amounts of $ 16,250.33 under the Home policy, and $ 8,152.73 under the American Central policy, a total of $ 24,403.06.

 Because of claims made by the respective defendants to these funds, the plaintiffs instituted this action for interpleader on April 7, 1961, making the insured named in the policy, and other claimants, parties defendant. The United States of America, by reason of its tax claims, intervened. Defendant H M T Corp., the insured taxpayer, was adjudicated a bankrupt on May 1, 1961 and by order of May 2, 1962, its Trustee in bankruptcy was admitted as a claimant-defendant.

 By this Court's order of October 25, 1961, filed on October 27, 1961, plaintiffs were authorized to deposit the adjusted amounts due under their two policies with the Clerk of this Court, and a counsel fee of $ 350 plus $ 57.30 costs were allowed to their attorney. There remains in the Registry of this Court the net sum of $ 23,995.76.

 By written instrument dated January 5, 1960, signed by the President of the insured bankrupt corporation, the services of Sarasohn & Company (Ira J. Sarasohn, Roy N. Sarasohn and David E. Friedman) were retained to adjust the fire loss in consideration of an agreement when paid by the insurers. These adjusters 10% Of the amount of the adjusted loss when paid by the insurers. There adjusters claim a prior lien upon the insurance proceeds in the amount of $ 2,440.30 for their services and expenses, upon the theory that such services created the fund which is the subject of the present interpleader.

 M. Dietz & Sons, Inc., claims as a conditional vendor of chattels to the insured, under a contract recorded April 16, 1959, by virtue of which it asserts an equitable lien against the fund in the amount of $ 176.00.

 Defendant B. B. Rider Corp. claims priority upon the fund by virtue of its conditional sale to the insured of air conditioning equipment under contract dated June 8, 1959, upon which it secured a judgment on June 16, 1960. That claim amounts to $ 3,071.87.

 Defendant Austin Nichols & Co., Inc., makes claim against the fund for $ 1,090.22 on its judgment recovered against the insured on April 7, 1960, and levy thereunder on April 8, 1960.

 Defendant General Home Service Association bases it claim upon a chattel mortgage for $ 4,800.00 dated December 10, 1959. This claimant alleges that its interest in the fund is predicated upon an alleged 'loss-payable endorsement' upon the fire insurance policies to the extent of the lien of its chattel mortgage; endorsements and chattel mortgage bearing same date.

 Defendant Gordon Bass claims upon a judgment entered October 17, 1960, and execution thereunder, in the amount of $ 736.58.

 Although an answer was filed on behalf of defendant Joseph Rilli, in which he asserts a claim in the amount of $ 1,750.00, for which amount the H M T Corp. executed an assignment on January 29, 1960 of the moneys due or to become due to it under the fire insurance policies, no appearance in behalf of this claimant was made when the case was moved to trial.

 So also in the case of defendant Michael J. Allone, in whose answer he claims to have recovered a judgment on April 8, 1960 in the amount of $ 2,195.67 including costs, on which execution issued. No appearance was made in behalf of this claimant at the trial.

 We need not consider defendants Samuel Ehrenkranz or Majestic Wine & Spirits, Inc., named in the complaint, as they failed to appear in the cause, no answer being filed in behalf of either.

 The Government claims priority against the fund with respect to its claims for withholding, and excise taxes, aggregating $ 51,659.57, assessed on and prior to August 28, 1959, and has moved the Court for summary judgment to that effect, in that amount. This motion was opposed by the Trustee in Bankruptcy of taxpayer-debtor, H M T Corp., as well as by Austin Nichols, B. B. Rider, Dietz, General Home Service and Sarasohn. Because of the imminence of the trial date (scheduled for the day next succeeding that on which oral argument was heard on the motion) and because of the challenges to the amount of the Government lien, I determined that the case was appropriate for plenary trial, which was held on the appointed date.

 The transcript of the pretrial conference held in this case on June 12, 1962 discloses that the only question to be decided the 'validity of the Government's priority rights.' In support of its motion for summary judgment, the Government annexed to its moving papers an affidavit by the Acting Director of Internal Revenue in Newark, New Jersey, certifying, as of October 25, 1962, the following schedules of tax notices, payments and credits, filings of tax lien notices, and balances due, viz.: Withholding Excise Excise Taxes Taxes Taxes Taxable period 4th 1/4 5/1/54- 5/1/58- 1955 4/30/58 12/31/58 Date of assessment 2/29/56 8/28/59 8/28/59 Date first notice 3/20/56 9/4/59 9/4/59 Payments and Credits $ 1,105.00 -- -- Notice of Lien filed 10/5/56 11/9/59 11/9/59 Balance Due $ 70.29 $ 45,404.92 $ 5,284.64


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