68 N.Y. 362 | NY | 1877
On the 5th day of July, 1873, Woodbridge Jewell had to their credit a balance in the defendant's bank, and on that day they filed their petition in bankruptcy to be declared bankrupts and discharged from their debts. On the ninth day of July they were adjudged bankrupts, and October first, the plaintiff was appointed the assignee of the estate of *364 the bankrupts and an assignment was duly executed to him. Thereafter plaintiff demanded of the defendant the aforesaid balance and it declined to pay. It is not questioned that plaintiff's right of recovery is complete but for facts now to be stated.
On the 12th day of July, 1873, one Niles recovered a judgment for a money demand against the bankrupts, and on the same day issued execution against their property which was thereafter returned unsatisfied. On the nineteenth day of July, Niles instituted against the bankrupts proceeding supplementary to execution and procured an order from a judge of the Supreme Court requiring defendant's cashier to appear and be examined, which order restrained the defendant from transferring or making any other disposition of any property belonging to Woodbridge Jewell, or in any manner interfering therewith until further order in the premises. Thereupon such proceedings were had that on the twenty-eighth day of July an order was duly made appointing a receiver of all the property and estate of the debtors, and on the thirty-first day of July the receiver so appointed duly qualified, and as such receiver, he demanded and claimed the balance standing to the credit of the debtors in the bank.
When the plaintiff demanded the balance of the defendant, payment was refused on the ground that it was restrained from payment by the order above mentioned, and it has not paid the balance to any one.
The defence has no foundation. The petition in bankruptcy was filed before Niles obtained his judgment, and it is expressly provided in the bankrupt law (R.S. of U.S., § 5044) that the assignment to the assignee in bankruptcy shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all the bankrupt's property and estate in the assignee as of that date.
The balance in bank must then be treated as vested in the plaintiff on the fifth of July, and the order of restraint subsequently served upon the defendant forbidding it from interfering with or disposing of the property of Woodbridge *365 Jewell did not restrain payment of the balance to the plaintiff to whom it belonged, and it would not have violated the order by payment to the plaintiff. If the order of restraint had been served before the petition in bankruptcy was filed a different question would have been presented.
We have examined all the authorities to which our attention was called on the argument and none of them are in conflict with these views.
The judgment should be affirmed with costs.
All concur.
Judgment affirmed.
