Avila v. . Lockwood

98 N.Y. 32 | NY | 1885

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The judgment in favor of the Brooklyn White Lead Company against the Manhattan Chemical Company and the defendants in this action (Lockwood McClintock) entitled the plaintiff's assignors, as owners, to the immediate possession of the property then in question and required its delivery to them. But the defendants now here, had, by converting the property, put it out of their power to comply with the judgment, and that fact is in substance the defense set up. It should not prevail. It would require us to hold that an ineffectual judgment divested a successful plaintiff of his property and gave the wrong-doer a new advantage. This is not the law. On the contrary the title is not disturbed until in some way he receives satisfaction for it. (Osterhout v. Roberts, 8 Cowen, 43; Ball v. Liney, 48 N.Y. 6.) Although they have disposed of the property, the defendants still hold the proceeds of the sale, and the judgment appealed from requires them to pay it over to the person appointed by the owner to receive it.

If the plaintiff or his assignor had sued upon the bond given in the former action, a different question would have arisen. The one now involved was properly disposed of by the court below, and its judgment should be affirmed.

All concur.

Judgment affirmed.