Kreiser v. City of New York

46 A.D. 16 | N.Y. App. Div. | 1899

Ingraham, J.:

The plaintiff brought an action to recover the amount deposited by one Samuel Kreiser with tljjp city of New York, the complaint .alleging that the said Samuel Kreiser had duly sold, assigned and transferred to" this plaintiff his claim and cause of action therefor on September 16, 1898; and it appeared that such assignment was, on that day, duly filed in the office of the comptroller of the city of New York. The defendant applied for an order interpleading .one ■John L. Melcher upon the ground that the said Melcher had obtained •a judgment against the said Samuel Kreiser, and had, on the 27th ■day of September, 1898, served upon the comptroller of the city of New York, as a third party, an order-in supplementary proceedings requiring the comptroller to appear before one of the justices of this ■court to be examined concerning a certain fund of $250 belonging to the said Samuel Kreiser. It appeared that the said order was served, and that a representative of the comptroller was examined •on October 3, 1898, and that the said representative testified to the filing of the assignment of the said fund by the said Samuel Kreiser to the plaintiff.^ The third party proceeding then appears to have been dropped, and, subsequently, Samuel Kreiser was examined in supplementary proceedings and a receiver of his property was •appointed. No further proceedings seem to have been instituted by Melcher against the city. Melcher’s attorney, in an affidavit submitted on this motion, states that he is-advised and believes that Melcher intends to bring proceedings to set aside said assignment; but it is nowhere stated that Melcher has made or does make any claim against the city of New York to recover the possession of this sum involved in this action.

We have held that it is necessary not only to establish the fact that a claim is presented, but, in addition, to show that such claim has some reasonable foundation. (Stevenson v. N. Y. Life Ins. Co., 10 App. Div. 235 ; Post v. Emmett, 40 id. 479.) Upon this state of the record it would appear that no substantial claim has been made against the city for the payment of this sum, and that upon the facts, so far as they appear, there is no substantial objection to.the right of the plaintiff to the fund. No facts are alleged to show that Melcher has any fight -to set aside the assignment. It was filed with the comptroller before the third party proceeding was commenced, and nothing is shown to justify .a finding that Melcher has-any claim to the fund in controversy.

We think the order was improper and that it should be reversed,, with ten dollars costs and disbursements against the city, and the-motion denied, with ten dollars costs.

Van Brunt,- P. J., Patterson, O’Brien and McLaughlin, JL, concurred.

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