Kelly v. Baker

26 A.D. 217 | N.Y. App. Div. | 1898

Rumsey, J.:

The action was brought to recover a sum of money upon a com tract, by which the defendant agreed to pay to the plaintiff $2,500 at a certain time, upon condition that the plaintiff should first furnish to the defendant a general release, specified in the contract. The defendant was a non-resident, and, upon that ground, the plaintiff procured an attachment. The defendant moved to vacate the attache ment for the reason that the complaint did not allege facts sufficient to constitute a cause of action. The defect insisted upon Avas that the plaintiff had not shoAvn that he had performed, that portion of' his contract Avhich required him to furnish the general release, and that,, for that reason, he was not entitled to the money claimed. The allegation upon that point is that, after the time for the payment of the money had arrived, the plaintiff tendered such release to the defendant, and demanded from her the said sum provided in the instrument to be paid, but that the defendant refused' to pay, and has not paid, the sum or any part thereof, and that the plaintiff now is and ahvays has been ready and willing to deliver said release to-the defendant upon receiving-the said payment.

We think that the allegation Avas sufficient to show that the plaintiff had done all he was required to do to entitle him to the payment-of the money. . The agreement to furnish the release, and the corresponding agreement on the part of the defendant to pay the ■ money, were substantially mutual conditions, and to be performed at the same time. In such a case, if the person who claims to be entitled to the money alleges á tender of performance on his part, and a demand of performance by the defendant which is refused, he sets up a good cause of action. (Pordage v. Cole, 1 Saund. [Williams’ Notes] 320e; Laird v. Pim, 7 M. & W. 474.) The conclusion of the learned judge below, that'a cause of action was not set up, was erroneous.

It is claimed also by the defendant that the levy was improper,, and should be vacated. It appears that the sheriff levied upon two bank accounts standing in the defendant’s name in certain savings-banks in this city, which the defendant claims do not belong to her personally, but as executrix of the will of Eliza Schneider, deceased. From the facts set out in the opposing affidavits, however, it appears-that the defendant is not only the executrix of Eliza Schneider, but is her residuary legatee, and that she has a beneficial interest in the estate of Eliza Schneider, after the payment of all debts and expenses of administration, much larger than the amount of the plaintiff’s-claim. But this is not of much importance. The defendant has-received that money and undertaken to deal with it as her own. That being so, it is not necessary to examine in this case whether she actually owns the money, or whether she is bound to account to-some other person or estate for it. The sheriff was bound to levy upon it, and his levy cannot be interfered with until, at least, he has-had an opportunity to be heard in regard to the matter.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the attach-r ment and levy denied, with ten dollars costs.

Van Brunt, P. J., Barrett, O’Brien and McLaughlin, JJ.,. concurred.

Order reversed, with ten dollars costs and disbursements, and. motion denied, with ten dollars costs.