105 N.Y.S. 670 | N.Y. Sup. Ct. | 1907
This action to recover $50,000, alleged to be due plaintiff for services performed in securing for defendant a purchaser for the “ Lost Chance ” mine, was commenced February 16, 1906, and on the same day a warrant of attachment was secured and a levy, pursuant thereto, was made upon 42,000 shares of stock of the Hevada-Utah Mines & Smelters Corporation, which was held under a pooling agreement by John Weir. Weir had arranged that the levy should be made, but left the city before the papers were ready. His representative, Thomas M. Smith, remained in charge of the safe in which the stock was deposited. Smith gave a certificate to the sheriff, stating that he held these shares as Weir’s representative and that they were the property of defendant Hodge, being held by Weir subject to the escrow or pooling agreement which was to expire January 1, 1907. Shortly afterward the stock was surreptitiously removed from the State. On May 2, 1906, defendant Hodge appeared in the action specially for the purposes of a motion to vacate the levy. The motion was denied and no appeal was taken. On December 29, 1906, judgment for $56,130.62 was entered in favor of plaintiff by default. Defendant’s attorney admits that he suffered this default knowingly and for the purpose
“ Stipulated that the plaintiff will not issue any execution against money upon the judgment herein until after five days after entry of an order upon the motion to open said defendant’s default. The motion to open default is adjourned to July 9, 1907, same time and place.
“(Signed) Armstrong, Brown & Boland,
"Attorneys for Defendants.
“ William P. Maloney,
"Attorney for the Plaintiff.”
“ To the Sheriff of the County of New York,
“ 209 Broadway, New York City:
“ Dear Sir.— We certify that the sum of $63,619.92, is deposited with you by Grenville Whittlesy, Esq., in compliance with an order of the Appellate Division of the Supreme Court, Eirst Department, dated June 21, 1907, which proceeds resulted from a sale of a portion of the 42,000 shares of stock of the Hevada-Htah Mines & Smelters Corporation upon which levy was made in this action by the sheriff of the county of Hew York, and we hereby request and authorize you whenever the plaintiff in the above action issues execution on the judgment therein dated December 29, 1906 (unless you be enjoined or stayed by some order of a court of competent jurisdiction), to satisfy the said judgment, with interest and your legal fees as sheriff from the above fund so deposited.
“ (Signed) Lydia A. Hodge,
“ Charles J. Hodge.”
That instrument was acknowledged by Charles J. Hodge on the 2d day of July, 1907, and by Lydia A. Hodge on the 3d day of July, 1907, and filed with the sheriff of the county of Hew York on the 3d day of July, 1907. It appears by the affidavit of the plaintiff and by the affidavit of Mr. Maloney, his attorney, that neither the plaintiff nor his attorney knew until July 8, 1907, that the defendant had consented to the satisfaction of said judgment. Mr. Maloney states that he signed the above mentioned stipulation for the reason that he was about to leave the city with his family and he could not attend on the return day of the order to show cause obtained by the defendant to open the default herein returnable July 3, 1907. It seems to me from the facts presented, about which there can be little or no dispute, that the defendant’s motion to open the default should be denied and that in so far as the stipulation referred to interfieres with the right of the plaintiff to issue execution against
Ordered accordingly.