Ireland v. Smith — 1 Barb. 419

Majority

p. 419

New-York Special Term,

December, 1847.

Harris, Justice.

Ireland vs. Smith.

Headnote

Where a person in the receipt of a monthly salary, as an officer in the custom house, assigned the same to another before it became due and payable, and gave the assignee his draft upon the disbursing officer of the custom house, for the amount, payable when the salary should become due; and deposited the draft with the disbursing officer, with the understanding that when the salary should become due the assignor should endorse the check which was required by the regulations of the custom house to be endorsed by him, and receive the draft from the officer and leave with him the check for the assignee; Held,, that such salary could not be reached by a creditor’s bill filed against the assignor subsequent to the assignment.

Held also, that the act of endorsing such check, by the assignor, after the filing of the creditor’s bill and the service of an injunction, was not a violation of such injunction.

In Equity. This was a motion for an attachment against the defendant, for the violation of an injunction. The defendent is a measurer connected with the custom house in the city of New-York, and as such is entitled to a salary of $125 per month, payable on the last day of each month. On the first day of September, 1847, the plaintiff filed a creditor’s bill against the defendant, with a view to reach the month’s salary which had become payable the day previous, and served upon the defendant the usual injunction. In the early part of August, the defendant had applied to one Sharp to advance to him the amount of his month’s salary. He accordingly received from Sharp $125, and gave him a draft upon the paying officer of the custom house for that amount, payable the last day of August. It was agreed between Sharp and the defendant, at the time, that the draft should be deposited with the paying officer, and that when the salary should become due the defendant should endorse the check, which according to the regulations of the custom house was required, and receive the draft from the officer and leave with him the check for Sharp. In pursuance of this agreement, the defendant, after the injunction had

p. 420

been served on him, endorsed the check for his salary, which was left with the officer, and was afterwards delivered by him to Sharp.

W. T. Horn, for the plaintiff,

contended that the fund belonged to the defendant at the time of serving the injunction. The draft was a mere request to pay money, and not being accepted it created no lien on the fund; and even had it been accepted it would not have done so, as there was, at that time, no fond in existence. Neither can the draft be considered as an assignment of the salary. ( 18 Wend. 344 . 2 Edw. Ch. Rep. 438 .)

H. P. Wanmaker, for the defendant.

The transaction between the defendant and Sharp amounted to an equitable appropriation, if not to a legal transfer, of the defendant’s salary for the month of August. The officer upon whom the draft was drawn had notice of such appropriation; and by receiving the draft from Sharp he must be deemed to have assented to the payment. If the endorsement of the check was necessary to put Sharp in possession of the fund to which he was already entitled, the defendant was bound to make such endorsement. If he had refused, he might have been compelled to do so. The defendant had no right to that portion of his salary. To have received it would have been a gross fraud upon Sharp. Had it come into the hands of a receiver appointed in this suit, I think it would have been the duty of this court to direct it to be paid to Sharp. The plaintiff has come to a court of equity for assistance in the collection of his debt. And the court, while extending its aid to him, will also see that the equitable rights of others are protected. Although the money then due had been earned by the defendant, and although his endorsement upon the check was required according to the regulations of the custom house, before the money would be paid, yet at the time the injunction was served, .the defendant had no right to collect the money,

p. 421

or if he had received it, to appropriate it to the payment of his debts or otherwise to his own use. There is nothing then in the act of endorsing the check which amounts, even constructively, to a violation of the injunction, and the motion must be denied with costs.^[1]

(a) (a) See Browning v. Bettis, (8 Paige, 569;) McCown v. Dorskeimer, (1 Clarke’s Rep. 144.) In Hudson v. Plets, (11 Paige, 180,) it was held that the recovery of a judgment by a defendant in a creditor’s suit after the service of the injunction, for a tort done to his exempt property, and even the collection of the amount of such judgment by him, would not constitute a breach of such injunction; inasmuch as the creditor had no interest whatever in the property of the debtor which was exempted by law from sale upon execution. So in this case, the amount of the salary having been assigned to another person previous to the filing of the creditor’s bill, the creditor had no interest in it and could not reach it by his bill. He therefore was not injured by the act of endorsing the check.