134 N.Y.S. 315 | N.Y. App. Div. | 1912
Lead Opinion
This action was brought by the sheriff of the county of New York pursuant to the provisions of section 655 of the Code of Civil Procedure, to reduce to possession, under a warrant of attachment, the sum of $5,000 claimed to be owing by the defendant to the attaching debtor. By stipulation the complaint was amended so that the action became one under section 708, subdivision 4, of the Code of Civil Procedure, to collect a debt or other thing in action attached. Upon the trial a verdict for plaintiff having been directed in the sum of $5,046, the exceptions were directed to be heard in this court in the first instance, judgment in the meantime being suspended.
The facts appearing from the record stated chronologically are as follows: Defendant, who had been the attorney for Pedro C. Casanova, was served on May 26, 1910, with an injunction order issued in the action of Pedro 0. Casanova against Ellen Spencer Hussey and Ernest L. Conant in the Supreme Court, New York county, whereby Conant was enjoined and restrained during the pendency of the action or until the due earlier entry of an order of the court from paying over to the defendant Ellen Spencer Hussey or any other person the sum of $5,000 or any part thereof, which was stated to be the amount in controversy therein. From the complaint in said action it appears that it was claimed that Conant had received the sum of $5,000 belonging to plaintiff on April 29, 1910, and still held the same, but declined to pay it over because of the claims of the codefendant Hussey. While Conant was still so enjoined a warrant of attachment was issued on September 28, 1910, in an action brought in the Supreme Court, New York county, wherein Ellen Spencer Hussey was plaintiff and Pedro 0. Casanova and Mary L. Hontalvan were defendants, a copy whereof was served on Conant on September 29, 1910, and pursuant to which a levy was made by the sheriff of the county of New York upon the property of the defendant Pedro 0. Casanova in the possession of the said Conant. That action was brought to recover the sum of $5,000 damages for breach of contract. Thereupon, on October 7, 1910, Conant filed with the sheriff a copy of the injunction order above referred to, and on October 17, 1910,
Upon the record before us it is plain that Conant had but one fund of $5,000 in his possession belonging to Casanova, although' error was committed in excluding testimony offered on defendant’s behalf to show that he not only had no other moneys or property of Casanova’s, but that Casanova had no claim of any kind against him save for the one fund of $5,000, which was the balance due on their accounting. The certificate of Conant, however, that this was the only property of Casanova’s which he had has not been attacked in any way.
The question now is whether Conant, having once paid over the fund of $5,000 which he held to the sheriff in satisfaction of the judgment in Casanova v. Conant, shall be compelled to pay the same amount a second time in satisfaction of the judgment in Mussey v. Casanova, in which action the fund was attached in his hands while he was enjoined from paying it over to any one. Or, to state it differently, was Conant remiss in not paying over the fluid to the sheriff to be held under the attachment in Mussey v. Casanova as soon as final judgment was entered in Casanova v. Conant (November 7, 1910), or as soon as he knew of its entry (March 25, 1911); and was he further remiss in not advising the sheriff when he paid over the fund under the execution in Casanova v. Conant that it had been theretofore held under a levy by the sheriff by virtue of the attachment in Mussey v. Casanova ? Or was the sheriff remiss in not holding the funds collected for the account of Pedro C. Casanova upon his judgment, while there was outstanding a judgment and attachment against the same party, until there, could be a determination of the right to the fund so realized as between Casanova and Mussey ?
As Conant never knew of the existence of the judgment until March 25, 1911, he cannot be charged with any duty before that time to act in reference thereto which, under the terms of the injunction order was a vacatur of the latter. But by the very terms of that judgment Casanova was declared to be entitled to recover from Conant the fund of $5,000, the only one he held, and which had been the subject of the injunction. Therefore, as by the judgment Conant was required to pay to
On March 28, 1911, when Conant paid over $5,000 in answer to the demand made upon him by the sheriff to satisfy the Casanova judgment against him, the situation was that the sheriff of the county of New York had collected from Conant the only fund or property belonging to Casanova in his hands; he had collected it for the benefit of the plaintiff in that action, Casanova; hut he also had in his hands an attachment against that very fund belonging to Casanova, in an action wherein judgment had been obtained against Casanova in favor of Hussey; he knew that payment of this fund to him under the attachment had previously been withheld because of an injunction in the suit of Hussey against Casanova, as he had twice been notified and two certified copies of which injunction order had been deposited with him. There is no pretense that Conant had more than one fund, or that the two executions referred to aught save the same fund.
Under these circumstances it was the duty of the sheriff to have held the fund until the ownership thereof could be determined as between Casanova and Mrs. Hussey. Upon his application their conflicting claims could have been heard. So far as this record shows, the only outcome possible was to award the money to Hussey. Conant would then have satisfied the judgment against him and have paid the fund over but once; Casanova would have satisfied the judgment against him to the extent of $4,850, the fund less the sheriff’s fees; and Mrs. Hussey would have received $4,850 on account of her judg
The exceptions must, therefore, be sustained and a new trial ordered, with costs to defendant to abide the event.
Ingraham, P. J., McLaughlin and Miller, JJ., concurred.
Concurrence Opinion
I concur- in sustaining the defendant’s exceptions and in ordering a new trial, but solely upon the ground that a question of fact was presented for the consideration of the jury as to whether or not the plaintiff was informed by the defendant or knew that the execution upon which he collected the money was for the same fund which had been attached and for which he then held an execution in favor of the plaintiff in the attachment action.
The execution commanded the sheriff generally to collect the sum of $5,000 out of the personal property of the defendant, and not to collect a particular fund, and I think that he was neither required to examine the judgment nor chargeable with knowledge that it related to a particular indebtedness or fund. The defendant, however, gave evidence tending to show that he informed the deputy sheriff, to whom he paid the money, that the same fund was involved in both actions. This was controverted by the testimony of the deputy sheriff. A
Exceptions sustained, new trial ordered, costs to defendant to abide event. Order to he settled on notice.