18 Abb. N. Cas. 310 | New York Court of Common Pleas | 1884
Lead Opinion
This is an application in proceedings supplementary to execution for an order directing the comp- - troller to pay over to the plaintiff a check for §2,500, drawn upon the Chatham National Bank by the president of the bank, and payable to Satterlee, the defendant, in the supplementary proceedings under the following state of facts : Satterlee was desirous of obtaining from the department of public works a contract for building a reservoir in the 24th ward, in this city, which by the statute, has to be awarded to the lowest bidder. In compliance with the rules of the department of public works he had, to enable him to put in a bid, to deposit with the department the sum of $2,500, as security for the performance of the contract if awarded to him. To enable him to do this he suggested to Louis Joy, whose business it has been to supply Italian laborers to contractors, that if he, Joy, would furnish the $2,500, to-enable Satterlee to put in proposals for the contract, Satterlee would, if he obtained the contract, aid him by employing some of the Italian laborers under his control, in executing the contract; no agreement to that effect it is stated was entered into, but Joy, in expectation of Satterlee’s doing so, if he obtained the contract, told Satterlee that he would procure the amount and deposit it with the comptroller, but that it was to remain his money, and be returned to him if Satterlee did not get the contract. Joy then procured the check referred to, to be drawn by the president of the Chatham Baiik, payable to the order of Satterlee, and brought it to Satterlee that he might indorse it, which he did, by writing his name on the back of it, without, as he swears, looking at the face of the check, or knowing by whom it was drawn. Joy then took the check, together with Satterlee’s written proposals for the contract, and deposited both in the department of public works, received from the deputy of tlie commissioner of public works a written acknowledgment of the receipt, by the department, from Satterlee, of the $2,500 upon his proposal or bid for the contract. Joy then took the receipt to Satterlee and got
The contract was awarded to another than Satterlee, but before the mo.ney. was obtained from the comptroller, into whose hands it passed, upon the awarding of the contract, an order was obtained in the supplementary proceedings enjoining the comptroller from parting with the check, until the further order of this court, and the application is now made by the plaintiff in supplementary proceedings for an order that the check may be applied in part payment of his judgment, which application is resisted by Joy, who claims that this money is not to be applied towards the satisfaction of Sattcrlce’s debts, but is to be restored to Joy, as the contract for the reservoir was not awarded to Satterlee. Satterlee swears that Joy had no interest.in the contract beyond what is above stated ; that he gave him no consideration for the §3,500 ; that Joy did not owe him anything, and Joy testified that he had no interest in the contract, beyond that he hoped and believed that he would have the furnishing of laborers for the work on the reservoir, if Satterlee obtained the contract for building it; that he took the money from the East River Bank, where he had it on deposit, intending to deposit it in bank bills in the department of public works, but afterwards concluded to obtain instead the certified check of the president of the Chatham Bank ; that the name of Satterlee had to be used because the proposals were in his name, that being the rule of the department; that Satterlee never had the money or the possession of the check, except so far as to enable him to indorse his name upon the back of it; that Satterlee neither looked at the face of the check or upon the face of the receipt when he indorsed his name on the back of both ; that he, Joy, never surrendered either to Satterlee, or agreed to loan him the money, or to use the same for any object except for the special purpose already stated ; and he swears substantially, in effect, that he kept the check in his possessin until he deposited it with
The plaintiff relies mainly for the granting of the motion upon a special term decision of Judge Clerke, Salter v. Weiner, 6 Abb. Pr. 191." In that case the defendant was arrested and held to bail in the sum of $500, and being unable to* find bail, a third party, in order to keep the defendant out of jail, upon the defendant’s promise to refund the money when bail should be put in by him, gave him $500 in gold, which the defendant deposited with the sheriff, in lieu of bail; afterwards the defendant obtained bail, who justified,' upon which the third party applied to the court for an order for the repayment to him of the amount deposited with the sheriff. Judge Clerke denied the motion, declaring that if the money belonged to the third party, at the time it was deposited with the sheriff, “ it became, by that deposit, the property of the defendant in the action ; that it was loaned money, and that loaned money is the property of ihe loanee.” It was in effect holding, that the money had to remain in the action, and could be applied by the plaintiff in payment of any judgment he might recover against the defendant thc-iein.
It appears from the report of this case, that it was decided orally, and no consideration appears to have been given to the fact that the money was ceposited with the sheriff by the third party. Meyer, as appears by the report, in order to keep the defendant in the action out of jail, and upon the express promise by the defendant that when he put in bail, the money in the sheriff’s hands should be returned to Meyer, all that the plaintiff was entitled to, was the right to imprison the defendant unless he put in bail for his appearance, and as the defendant afterwards did this and thereby complied with all that the plaintiff could require of him, it is difficult to see what right the plaintiff had to the money which the defendant’s friend gave to deposit.
Not only is no authority referred to by Judge Clerke for this decision, but it was in direct conflict with the case
In addition to this, Judge Brady having declared (Hermann v. Aaronson, 8 Abb. Pr. N. S. 158), that Judge Clerke’s decision was reversed by the general term, I sent to inquire of A. B. Dyett, who was the counsel for the third party in that case, if such was the fact, who, by his note in reply [which was annexed to this opinion] says that the decision was reversed by the general term of the supreme court, May 18,1858, and that the appellate court ordered tlie money to be paid to Meyer, the third party, who had given it to the defendant to deposit in lieu of bail, upon the ground that it was, when applied for, his money, and could not then, as Judge Clerke had held, be regarded as loaned ,to the defendant.
The court of common pleas, in the case of Edelston v. Adams (2 Moore, 610 ; S. C., 8 Taunt. 557), where money .was deposited by a third person with the sheriff in lieu of bail,, under .the 43 Geo. III., c. 46, § 2, and he paid it over
In the court of the king’s bench, however, it was decided otherwise, in the ease of Douglass v. Stanbrough (3 Ad. & El. 316). In that case a third party deposited money into court for the defendant iu lien of bail, under 7 and 8 Geo. IV., c. 71, § 2. The defendant having subsequently surrendered himself into custody, the qolaintiff and the defendants were required to show cause why the money should not be paid out of court to the third party. It was opposed by the plaintiffs on the ground that, under the statute, the application must come from the defendant himself, and also because the defendant had not put in special bail, but had only surrendered himself into custody. The defendant also appeared, but did not oppose the motion, and under those circumstances the court held, to satisfy the statute, that they would regard the case as coming before
The application therefore must be denied.
Concurrence Opinion
The plaintiff’s application is strictissimi juris, inasmuch as the granting of it might have the effect of robbing Peter to pay Paul.
Mr. Nathans has no right to this money if it be Joy’s, and whether it is Joy’s or not, cannot be determined upon an application made under section 2447 (Code Civ. Proi.]. The only cases in which section 2447 is applied, is where there is no “ substantial dispute,” as to the right of the judgment debtor to the property. Here there is a substantial dispute as to Satterlee’s right to the check. If it be true that Joy placed in the hands of Satterlee, a certain sum of money (now represented by the check in controversy) to be deposited with the comptroller, that the comptroller should keep it if a* contract were awarded to Satterlee, or return it to Joy, if a contract were not awarded, it is, to say the least, very doubtful if the judgment creditor has any claim upon the check. Certainly the rights of Joy ought not to be disposed of upon this summary application.
It is said that J oy must be treated as a lender of money, and that Battcrlee, as the borrower, acquired the title to the .money that Joy lent to him. This would be so, if the understanding of the parties was that Satterlee might do what he pleased with the money, but if it were the understanding that the money should be deposited with the comptroller and returned to Joy if a contract were not awarded ‘to Satterlee, why should not that understanding be carried out? Should Satterlee be allowed to hold the money in spite of his agreement that it should be returned to Joy in case a contract were not awarded ? If Satterlee would not be permitted to retain the money, why should Nathans, who
But there is a controversy as to whether Joy did lend Satterlee the money. It is alleged by the judgment creditor that it was Sattcrlec’s own money and not Joy’s, that was deposited with the comptroller., This raises an issue of fact that should be tried in an action, and ought not to have been disposed of summarily upon this application.
So much of the order .of April 17, 1884, as directs the comptroller to pay to Joy the chock in controversy should bo reversed. That part of the order that denied the application for a receiver should also be reversed, and the plaintiff should have leave to apply at special term for the appointment of a receiver.
The order is affirmed as far. as it denies the plaintiff’s application for an order that the comptroller deliver the check to the sheriff.
Labeemobe, P. J., concurred.