| N.Y. Sup. Ct. | Dec 10, 1894
The plaintiff was appointed receiver of the property" and effects of Lewis R. Stegman by an order of a judge of the city court of Brooklyn, dated April 15, 1884. At that date Stegman was sheriff of Kings county. Francis S. Hodgkinson had been duly appointed undersheriff by Stegman, and on the 5th day of January, 1882, the defendant and Hodgkinson executed and delivered to Stegman a bond in the penalty of $10,000, conditioned for the faithful dis
At the close of the evidence the defendant moved to dismiss the complaint upon the grounds, - among others, that the plaintiff had no title to the cause of action. This objection, we think, was well taken, and is fatal to the judgment. There is no allegation in the complaint that the sheriff had paid the surplus to the county treasurer, nor was there any proof of that fact. Hodgkinson was bound to pay over the money to the sheriff upon his demand, but the sheriff’s right to receive the money was an official right, and not one that belonged to him as an individual. He. had not been compelled to pay over the surplus money; hence he had suffered no actual damage by reason of Hodgkinson’s defalcation. He was liable for Hodgkinson’s default, but such liability flowed from their official relation. It follows that the money sought to be recovered in this action was not Stegman’s property. While he had a right to receive it, his receipt of it would be as sheriff, and he would have been bound, immediately upon its receipt, to have deposited it with the county treasurer as directed by the foreclosure judgment. The plaintiff represents Stegman’s creditors, and he has title to such property as Stegman possessed individually at the date of the appointment. He had no title and no right to receive trust funds which Stegman was entitled to receive as sheriff. But if it could be shown that Stegman had made good Hodgkinson’s default, and had a right of action upon the bond in suit for damages sustained, which would belong to him individually, and would be applicable to the payment of his debts, the plaintiff could not recover upon the evidence now before us. The judgment of foreclosure under which the sale was made by Hodgkinson was granted nearly three months after plaintiff was appointed receiver, and the cause of action arising from the failure to comply with its direction as to the surplus money did not arise until June, 1885. The receiver took title to such property as Stegman possessed or was entitled to at the date of the order appointing him. He takes no title to after-acquired property, and cannot, therefore, claim or enforce any rights which became vested in the debtor subsequent to the order appointing him receiver. Dubois v. Cassidy, 75 N.Y. 298" court="NY" date_filed="1878-11-26" href="https://app.midpage.ai/document/dubois-v--cassidy-3631003?utm_source=webapp" opinion_id="3631003">75 N. Y. 298; Campbell v. Genet, 2 Hilt. 290" court="None" date_filed="1859-02-15" href="https://app.midpage.ai/document/campbell-v-genet-6143652?utm_source=webapp" opinion_id="6143652">2 Hilt. 290; Thorn v. Fellows, 5 Wkly.