78 N.Y.S. 338 | N.Y. App. Div. | 1902
One Ryshpan, having recovered a judgment against the defendant Joseph Sonberg, and an execution thereon having been returned unsatisfied on March 4,1901, commenced supplementary proceedings to enforce the judgment in which the plaintiff was appointed a ■receiver of the property of Sonberg, March 1,1901, and duly qualified as such on March 12, 1901. On November 23, 1900, the defendant Joseph Sonberg, the judgment debtor, had been arrested in a civil action in the City Court. On November 28, 1900, there was deposited with the sheriff of the county of New York by the defendant Lazar Sonberg the sum of $900, in lieu of bail, the sheriff upon its deposit giving a receipt which was as follows :
“ Rec’d from Albert Sonberg sum of 900 in lieu of bail for above deft, in the above action.
“ FREDERICK GREEN,
“ Bond Olerh,
“Sheriff's Office''
IJpon the deposit of this sum of $900, Joseph Sonberg was released, whereupon, at the request of the attorney for Lazar Sonberg, he executed a direction to the sheriff of the county of New York, entitled in the action in which the bail was given, whereby the sheriff was directed that the sum of $900 “ deposited with you in lieu of bail for my discharge from custody upon the order of arrest issued herein, in the above entitled action be paid
This issue having come on for trial, the plaintiff, after proving his appointment as receiver, proved certain declarations of Joseph Wilkenfeld tending to show that the money deposited was the money of the judgment debtor. This was objected to by the other defendants, but was received by the court as against Wilkenfeld. Declarations of the judgment debtor were also proved tending to show that this money belonged to him. Upon this evidence the plaintiff rested. The defendant Joseph Sonberg was called by the defendant and denied making these declarations as to this $900, and testified that he never deposited this sum with the sheriff in lien of
The money in question, however, was not deposited by Joseph
By this provision of the Code of Civil Procedure a method is provided by which a person for whom the money was deposited as security may provide for its return to the person depositing it when the money is not the property of the person for whose appearance it has been deposited. It is not in the nature of a transfer of the money, but a declaration that the money when repaid is to be repaid to the person specified, and the section expressly provides that the money deposited is then deemed the property of the third person, subject to the plaintiff’s interest therein and to the rights of a creditor where the direction is given for the purpose of hindering, delaying or defrauding creditors; but to entitle a creditor to secure the possession of this money, there must be proof that the money was the property of the debtor which should be applied to the payment of his debts, and that
In this case the judgment debtor-executed the direction to pay to the third person, and the money was to be deemed the property of that third person, unless the plaintiff proved that the money belonged to the judgment debtor, and that the direction to pay to the third person was given with intent to hinder, delay and defraud creditors. As I read this- testimony, there is no evidence as against this defendant Albert Sonberg that the money was not his or that-it was the property of the judgment debtor, and that he was not entitled to it when the object for which it had been deposited' had been accomplished and the money was to be returned. The declarations of the judgment debtor were received only as against-him, and were not evidence as against the other defendants. ■
I think, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the ■ appellant to abide the event.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, ■ JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.