12 Misc. 626 | The Superior Court of the City of New York and Buffalo | 1895
Upon- the conceded facta the moneys on deposit became the property of the plaintiff prior to April 1, 1895. The defendant was on that day sufficiently notified of the change of title, and, as a consequence, the payment on April 11, pursuant to the order made by the common pleas judge, was in the defendant’s own wrong, and not chargeable to the plaintiff. Richardson v. Ainsworth, 20 How. Prac. 521; Muir v. Schenck, 3 Hill, 232; Schrauth v. Bank, 86 N. Y. 390; Wright v. Cabot, 89 N. Y. 570; Bank v. Pugsley, 47 N. Y. 368; Beebe v. Goodenough, 3 Hun, 73; Roy v. Baucus, 43 Barb. 310.
The order taken by the judgment creditor should have been in the language of section 2446 of the Code, “permitting” the defendant'to pay to the sheriff. It can have no greater effect. The defendant might then have availed itself of the option, and, by declining, put the creditor to his remedy by action..
Section 2447, which authorizes a “direction” to pay, applies only to moneys in the hands of.the judgment debtor. The provision therein directing delivery over by a third person applies to articles of personal property other than money, capable of delivery, and to which the title of the debtor is undisputed.
If the defendant had called the attention of the judge who made the order to the fact that the plaintiff had possession of the bank book and claimed the deposit, he would no doubt have modified it by making the order permissive instead of mandatory. At all events, the order furnishes no protection to the defendant, and the payment by .it to the" sheriff must be considered as voluntarily made. The fact that the notice did not specify in detail how the money on deposit, became the property , of the plaintiff is immaterial, for the
' It follows that the plaintiff is entitled to judgment on the demurrer, with costs.
