124 N.Y. 406 | NY | 1891
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The receiver claims that he paid out the fund in good faith and in obedience to orders directing him to do so. If that contention is sustained by the facts, the claim as against him for restitution cannot be supported. He received the fund pursuant to the order made in action No. 1 appointing him as such, and directing the defendant to hand it over to him, and he made the payments of September 5, 1888, of $494.17 on account of plaintiffs' judgment in action No. 2, and $408.21 on the Cutter judgment in obedience to the direction in orders of the court, and by them he was protected in so doing. But the amount which he was directed to retain during the pendency of the appeal from the judgment in action No. 1, he had no specific direction to pay out except that given by the first order to pay it on the last-mentioned judgment; and the purpose of that direction was defeated when such order was reversed by the Court of Appeals. It is, however, urged that on such reversal the adjudication in the Cutter judgment and the order to make payment upon it remained effectual and opened the way for the payment of the balance in his hands upon that judgment, but it may be *411
observed that the adjudication there was that the receiver pay the judgment "after satisfying the obligations of the prior receiverships," and that the order directed him to retain the amount of the principal of the first judgment during the pendency of the appeal from it to the Court of Appeals; and it evidently was contemplated that in case it was affirmed, such amount might become applicable to payment upon it. There was never any direction to otherwise pay it out. That judgment was affirmed, and as such remained effectual; and afterwards on reversal of the order he held the balance so retained subject to direction of the court, but without applying to the court for further instructions he paid it on the Cutter judgment. In this the receiver was justified if the plaintiffs in that judgment were entitled to it. It is insisted they were, because their judgment declaring their right to payment out of the funds of the estate, and the order before mentioned recognizing such right remained undisturbed. This judgment as well as those preceding it established the claims of the plaintiffs as against the estate, and were charges upon it to the extent which the law would enable them to enforce them and obtain satisfaction. It appeared in the papers upon which the order under review was made, that there were creditors of the testatrix having unpaid claims amounting to ten thousand dollars. These judgment creditors, whose debts were created subsequently to her death, had no right in exclusion of her creditors to appropriate to the payment of their claims the entire amount of the estate of the testatrix, and how much of the fund they could eventually receive was dependent upon the distribution which the surrogate should direct after opportunity given to the creditors of the decedent to be heard. This was held in Willis v. Sharp (
The order as against the receiver should be so modified as to require him to pay only $1,393.42 and interest thereon from October 8, 1889. And as against the plaintiffs, it should be so modified as to order them to pay only the sum of $494.17 and interest thereon from September 5, 1888, and as so modified the order as to such parties respectively should be affirmed.
All concur.
Ordered accordingly. *414