JOHN S. SHEA, Sheriff of the County of New York, Plaintiff,
ERNEST L. CONANT, Defendant.
MOTION by the defendant, Ernest L. Conant, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term in November, 1911.
Francis A O'Neill, for the plaintiff.
Nelson L. Robinson, for the defendant.
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 C. Casanova against Ellen Spencer Mussey 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 Mussey 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 Mussey. 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 Mussey was plaintiff and Pedro C. Casanova and Mary L. Montalvan 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 C. 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,
gave a certificate to the sheriff that, as he was enjoined by said order 'during the pendency of said action from paying out to any person the sum of $5,000 in controversy, I hereby notify you that said injunction is still in force and that I am holding the said sum of $5,000 in my possession and control and that I have no other sum of money and no other property of any sort subject to the aforesaid attachment.' Thereafter, on November 7, 1910, judgment was entered for $5,000, without costs, in favor of plaintiff in the action of Casanova v. Conant, the demurrer of the defendant Mussey to the complaint having been sustained and judgment having been rendered against the defendant Conant upon the pleadings. The judgment provided 'that final judgment be and the same is hereby entered in favor of the plaintiff Pedro C. Casanova against the defendant Ernest L. Conant for $5,000 now in said defendant's hands belonging to said plaintiff, without costs; and it is Further Ordered that the said plaintiff Pedro C. Casanova recover of the said defendant Ernest L. Conant the sum of $5,000 now in said defendant's hands belonging to said plaintiff and that execution issue therefor.' Thereafter, on January 20, 1911, judgment was entered in favor of plaintiff against defendant Pedro C. Casanova in the action of Mussey v. Casanova and Montalvan for $5,294.39 damages and costs, and an execution was issued thereupon and received by the sheriff of the county of New York January 21, 1911, directing him to satisfy the same firstly out of the property of defendant theretofore attached, and upon which a levy had already been made, and, if that was insufficient, out of the other property of the defendant in the manner specified. On January 23, 1911, Conant notified the sheriff in writing that said execution could not be satisfied out of Casanova's funds in his hands, giving the same reasons as in his letter of October 17, 1910, and delivering therewith a certified copy of the injunction order. On March 28, 1911, the sheriff of the county of New York collected from Conant the sum of $5,000 under the judgment in Casanova v. Conant, receiving from the sheriff a receipt therefor, which specified that it was paid on account of the execution in that action. The execution in Casanova v. Conant was returned March 31, 1911, satisfied to the extent of
$4,850, unsatisfied as to balance; the execution in Mussey v. Casanova has never been returned.
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 fund 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 ...