People ex rel. Meyer v. Gould

| N.Y. App. Div. | Jul 1, 1902

McLaughlin, J.:

The relator, in an action commenced in the City Court of the city of New York, recovered a judgment for upwards of $1,000 against Mary Elizabeth Fieroe, the defendant therein named — moneys alleged to have been stolen by the defendant from the plaintiff. Prior to the commencement of. that action, the defendant Fieroe was indicted for grand larceny in the first degree, and was admitted to bail in the sum of $1,000, in lieu of which the respondent Smalley deposited with the city chamberlain $1,000, taking from him the following receipt:

“This is to certify that Newton B. Smalley, Plainfield, New Jersey, for the defendant above named, has deposited with the Chamberlain of the City of New York, this day, the sum of Ten Hundred Dollars, the sum mentioned in said order as security for said defendant’s appearance pursuant to said order, instead of the said undertaking of bail, pursuant to section 586 of the Code of Criminal Procedure.”

After such deposit had been made the relator, as the plaintiff in "the action which she had brought against Fieroe, procured a warrant of attachment and attempted to levy upon the same. Subsequently Fieroe was brought to trial, and, the jury having disagreed, an order was made discharging her and canceling the undertaking which she had given, and also directing that the money deposited be returned to her. Before such return had been made the relator in the action brought by her recovered a judgment upon which execution was issued and a levy attempted to be made upon such money. The chamberlain refused to deliver the money to the sheriff, and thereupon the relator applied for a peremptory writ of mandamus to compel him to do so. The respondent Smalley intervened and asked that the chamberlain be directed to deliver the money to him ; and in addition to the receipt which he took from the chamberlain at the time he deposited the money with him hereinbefore referred to, he showed that prior to the making of the application and after Fieroe had been discharged in the criminal proceeding and her undertaking canceled, .she had given to him the following order, which had been served upon the chamberlain :

“ April 12th, 1902.

“ To the, City Ohamberlaim, of the City of New YorTc:

“ Sib.— My undertaking to appear for trial before the Court of General Sessions of the County of Hew York was on this day discharged by order of the Hon." Joseph E. Hewbufger, who directed that the $1,000 deposited by Hew ton B. Smalley to secure my attendance at court should be refunded to me. As the said money was deposited by the said Hewton B. Smalley to secure my liberty, and as I have not now and never had any ownership in the said money, you are hereby directed to repay the said money to the said Hewton B. Smalley or his order.

“(Signed) MARY E. FIEROE.”

He also showed by his own affidavit, as well as by the affidavit of Fieroe — and the fact was not contradicted — that the money deposited in fact belonged to him. Both applications were denied» and the relator has appealed.

We are of the opinion that the relator’s application was properly denied. The fact that the money deposited actually belonged to Smalley is not disputed, nor is it disputed that such deposit was made by.him in lieu of the undertaking required in the criminal proceeding. So far as that proceeding was concerned it was Fieroe’s money (People ex rel. Gilbert v. Laidlaw, 102 N.Y. 588" court="NY" date_filed="1886-06-25" href="https://app.midpage.ai/document/people-ex-rel-gilbert-v--laidlaw-3582192?utm_source=webapp" opinion_id="3582192">102 N. Y. 588); but it did not make it her money for any other purpose. Title to property can only be acquired. by consent of the owner or by operation of law. Her creditors could not, by reason thereof, deprive the actual owner of it. The money in fact belongs to Smalley, and the court should, upon the facts presented, have granted his application by directing the chamberlain to pay it to him. It is his money and he is entitled to it. He, however, is apparently satisfied with the order, inasmuch as he has not appealed from it. The relator has no interest in it; and that being so, certainly was not injured by the order made.

The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.

Van Brünt, P. I., O’Brien and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.