25 N.Y.S. 186 | N.Y. Sup. Ct. | 1893
It appears that the plaintiff deposited with the Marine Bank a sum of money for which it issued to him two certificates of deposit, and that he subsequently brought action against the bank to recover the amount thereof. Upon the trial one Rockwell was summoned by a subpoena duces tecum to produce the certificates. He appeared, and upon order of the court produced them, but claimed that they belonged to the estate of Elizabeth A. S. Rockwell, deceased, and that he held them as her personal representative. The court thereupon made an order that they be delivered to the clerk of the court, and that he retain them in his possession subject to its further order. Charles A. Orr was at that time the county clerk, and, as such, the clerk of the court. He took possession of the certificates pursuant to the order, and upon the termination of his term of office turned them over to his successor, the defendant in this action. Upon the trial of the action against the bank the court ordered judgment in favor of the plaintiff, which judgment has been reversed by the court of appeals, and sent back for a new trial. Read v. Bank, 136 N. Y. 454, 32 N. E. Rep. 1083. The plaintiff then moved at the special term for an order directing the clerk to deliver the certificates to him, which order was denied, but without prejudice to renewal thereof upon notice to Rockwell or the personal representatives of Elizabeth A. S. Rockwell, deceased. Thereupon this action was brought, and papers in replevin placed in the hands of the sheriff, who demanded from the defendant the certificates in question.
We do not understand that this action can be maintained. The defendant is the clerk of the court, and the custodian of the certificates, made such by the express order of the court. He is therefore an officer of the court, represents it, and his possession is that of the court. In the case of Hoe v. Gibson, 7 Paige, 513, the chancellor says: “It is well settled that after a receiver has been appointed, and has taken the rightful possession of the property, it is a contempt of court for a third person to attempt to deprive bim of that possession by force, or even by a suit or other proceeding against him, without the permission of the court by whom the receiver was appointed. * * * The same principles are applicable to every other interference to the possession of a receiver, sequestrator, committee, or custodee, who holds the property as the officer of this court; as his possession is in law the possession of the court itself.” See, also, Bank v. Schermerhorn, 10 Paige, 263; Walling v. Miller, 108 N. Y. 173-178, 15 N. E. Rep.
