majority">By the Oourt, Ingraham, J.

There can be no pretense for upholding this action on the ground that it is a case of interpleader. Here the plaintiff denies any liability to either of the defendants. He neither admits that any thing is due to one of the defendants, nor does he offer to bring the amount in dispute into court. The case has nothing that can bring it within that class of cases, and the injunction can not be sustained on that ground.

Nor do I think the allegation, of conspiracy against the defendants, in regard to bringing separate suits, is sufficient to sustain the action. The defendants claim adversely to each other as well as to the plaintiff. There is no direct fraud charged, but the plaintiff avers his belief of such conspiracy, because they bring separate actions for the same cause and by the same attorney. More direct proof of fraud' than is here suggested, is necessary to sustain such an action. Fraud, in such a case, is not to be presumed, and the conspiracy should be distinctly averred, and not charged upon the mere belief of the plaintiff.

The plaintiff urges that he claims equitable and affirmative relief on his part, and therefore this action, and the injunction granted therein should be sustained. Even if that were so, if the plaintiff brought separate actions against the defendants, it affords no reason .for uniting the defendants in pne action and compelling them to interplead with each other *662as to which, of them is entitled to recover against the plaintiff. But the plaintiff may have all such equitable relief against each of the defendants in the action brought by him, which he asks for in his answer, to as full an extent as could be given him in an action brought by him.

It is urged upon the court to sustain this action upon the ground that it will prevent a multiplicity of suits, and the New York and New Haven Railroad Co. v. Schuyler is referred to as being in point. There are here, however, only two actions for the same cause, and two suits have never been considered sufficient to sustain a bill in equity for such cause. The fact that these suits were commenced by attachments does not increase the number of actions, although it is evident that in these cases it will operate harshly on the plaintiff. I can not see, however, that the union of these defendants in- one action would relieve the difficulty. For each defendant a sufficient undertaking would be necessary. They have no joint interest which would allow a joint undertaking, or by which they could in any way be compelled to rest on a single undertaking to both.

The remaining ground on which the plaintiff’s counsel has urged a reversal of the order appealed from is, that this action, although not a case of interpleader, may be considered an action in the nature of a bill of interpleader to prevent the danger of a double recovery against him.

But such an action can only be sustained where the parties sought to be impleaded have some right or interest in the subject matter of the action, which interferes with the plaintiff’s attempt to establish his own rights. Various cases are stated by Story, in which such a bill could be maintained, but in all of them both plaintiff and defendants had some interest in the subject matter which could not be adjusted without the others; but no case is referred to where the plaintiff claimed that the defendants whom he sought to interplead had no right or .title to, or any interest in, the *663subject matter of the action. (Story’s Eq. Juris. § 824. Mohawk & Hud. R. R. Co. v. Clute, 4 Paige, 392.)

[New York Genebal Term,April 2, 1866.

The order appealed from should.be affirmed.

Geo. G. Barnard, ingrafam and Sutherland, Justices.]

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