## Facts

- Anthony Emmi and others (Emmi) agreed in writing to pay MacQueen Realty Co. (MacQueen), a licensed real estate brokerage firm, a $20,000 commission in connection with the execution of a lease.
- Under the agreement, Emmi paid MacQueen an initial $10,000 in 1966.
- Emmi refused to pay the remaining $10,000 (two $5,000 installments) after Daniel Owen (Owen) claimed he was entitled to the unpaid balance.
- Owen had been employed by MacQueen when the commission agreement was made, but Owen was not a licensed real estate broker at the time.
- MacQueen sued Emmi to recover the unpaid $10,000.
- Emmi conceded it owed the $10,000 to someone and moved under CPLR § 1006(f) to be discharged as a stakeholder, to pay the money into court, and to recover costs and disbursements, including attorney’s fees, based on the competing demands by MacQueen and Owen.
- MacQueen opposed interpleader and cross-moved for summary judgment against Emmi, arguing Owen’s demand was not a legally valid claim because New York law bars recovery of brokerage commissions by unlicensed persons; MacQueen argued Owen’s only possible claim would be against MacQueen, not against Emmi.
- Owen answered Emmi’s interpleader pleading but asserted no affirmative facts and did not deny that he lacked a broker’s license at the relevant time.

## Issues

1. Whether Emmi was entitled to interpleader relief and discharge as a stakeholder under CPLR § 1006(f) where the competing claimant (Owen) was not a licensed real estate broker when the commission was earned.
2. Whether Owen’s demand for the commission balance was a sufficiently “colorable” adverse claim to justify interpleader.
3. Whether MacQueen was entitled to summary judgment against Emmi for the unpaid $10,000 commission balance.

## Decision

- The court denied Emmi’s motion for interpleader relief, including discharge as a stakeholder and an award of costs and attorney’s fees.
- The court concluded Owen’s demand was not a “colorable” claim because an unlicensed person cannot recover a real estate brokerage commission under New York law.
- The court granted MacQueen’s cross-motion for summary judgment against Emmi for the unpaid $10,000.

## Legal Principles

- Interpleader under CPLR § 1006 is available to a stakeholder only when there are adverse claims to the same fund that are at least “colorable”; interpleader is not appropriate when one asserted claim fails as a matter of law on its face.
- New York’s real estate licensing statutes bar an unlicensed person from recovering a real estate brokerage commission from the principal to the transaction.
- When a commission dispute arises between a licensed brokerage firm and an unlicensed employee or associate, any remedy for the unlicensed person—if one exists—lies against the brokerage firm under their internal arrangement, not against the principal who agreed to pay the commission.
- A commission obligor may not postpone payment to the licensed broker or shift litigation expense through interpleader when the supposed rival claim is legally invalid and creates no real risk of double liability.

## Conclusion

Because Owen was not licensed when the commission was earned, his demand for the unpaid balance was not a legally valid adverse claim, so Emmi was not entitled to interpleader discharge or fees; Emmi remained liable to MacQueen, and MacQueen was entitled to summary judgment for the remaining $10,000 commission.


MacQueen Realty Co. v. Emmi, 58 Misc. 2d 54, 294 N.Y.S.2d 566 (1968)