Anderson v. Tompkins — 23 Abb. N. Cas. 433

Majority

p. 433

ANDERSON v. TOMPKINS.

N. Y. Supreme Court, First District, Special Term ;

October, 1889.

Headnote

Attachment; action to reach deposit in lieu of bail.'] The provisions of Code Oiv. Pro., §§ 677 and 678, authorizing actions to be brought in the names of the sheriff and an attaching creditor in aid of an attachment,^[1] do not apply to moneys deposited in court in lieu of bail; and the court will not grant leave to sue its clerk to reach such deposit in his hands made by the attachment debtor as a. party in another action,^[2]

p. 434

Motion by plaintiff for an order granting leave to bring an action in the names of himself and the sheriff against the county clerk to recover the sum of $1,000 deposited by defendant in lieu of bail in another action in the same court.

Henry Pressprich, plaintiff’s attorney.

: Wilcox & Goodwin, defendant’s attorneys.

The provisions of sections 677 and 678 of the Code of Civil Procedure are not applicable to money -deposited in court in lieu of bail, and the court cannot permit an action against its clerk for obedience of its lawful -orders. The money so deposited came within the provisions •of another system, namely, those with regard to arrest and •bail. The attachment creditor might ask to be .heard before '.the money so deposited is ordered to be paid over to the third person, under section 586. He must also ask for directions or instructions to the clerk, but the latter cannot, 'be impleaded in an ordinary action, and subjected to damages and costs for simply doing his duty under judicial «order. This is an attempt on the plaintiff’s part to sue the -court through its officer. The money is in cour.t, and can only be withdrawn by the order or direction of the court. The application must therefore be denied.^[1]

* For the practice as to reaching such deposits and those in the hands of receivers, etc., see 2 Abb. New Pr. & F. 228, and 22 Abb. N. C. 125 .