45 How. Pr. 142 | N.Y. Sup. Ct. | 1873
It is testified by the attorney of Messrs. Wilmerdings & Mount, and not denied by Mr. Fowler, that when the latter obtained the moneys in controversy he knew the fact that said moneys were claimed by Mr. Rice, and that an action, brought by him, against Wilmer-dings & Mount to recover the same was then pending. There is nothing in the papers to show that Mr. Fowler had any reason to question the title of Mr. Rice to the moneys. On the contrary, it is a fact of some significance that it is not made to appear that Lowenstein, the judgment debtor, on his examination stated that the moneys belong to him. That examination is not before us, and all that appears respecting the contents of it is set forth in Mr. Fowler’s affidavit, dated October 23d, 1871. The statement there is, that on the examination of the judgment debtor he stated and swore that the relators (Messrs. W. & M.) had owed him the money in question. The title of Mr. Rice has been judicially established.
Mr. Fowler obtained the moneys upon an ex parte deposition of Thomas A. Wilmerding that there was a balance of $963.36 remaining with his firm to the credit of the judgment debtor. Mr. Wilmerding was not interrogated respecting the
The appeal from the order made by Mr. justice Ingbaham was waived by the motion under review.
Upon the whole case, therefore, we think the order appealed from should be affirmed with costs.
The defendant appealed to the court of appeals, and on the 15th of May, 1878, the order was affirmed with costs, the court holding that the order of judge Babnabd, under which the money was paid, having been procured by fraud, was a nullify, and that an attachment was the proper remedy and applicable in such cases to any person guilty of obtaining money by fi'aud.