61 N.Y.S. 539 | N.Y. App. Div. | 1899
The action was brought to recover the sum of $50, deposited with the sheriff by -the plaintiff’s assignor in lieu of bail on an attachment granted against one Robert Cuddy in proceedings supplementary to execution. The receipt ran in this form:
“Received from Frederick Hunecke [plaintiff’s assignor] the sum of fifty (50) dollars as deposit of bail set in the above case, as called for on an order of attachment against judgment debtor,” etc. Signed, “Frank D. Creamer, Sheriff.”
The defendant paid this money over to the plaintiff in the supplementary proceedings under an order made therein by the county judge. The order did not assume to apply the money in satisfaction of any fine imposed on the judgment debtor for contempt, but as being the property of the judgment debtor, and hence applicable to the payment of his debt.
That either in civil or criminal proceedings money deposited as bail may be applied to the satisfaction of obligations to secure which the defendant is held to bail, regardless of the rights of third par
The judgment appealed from should be modified so that the dismissal of the complaint shall not be on the merits, and, as thus modified, affirmed, without costs of the appeal to either party. All concur.