Haebler v. Meyers — 11 N.Y.S. 312

Majority

p. 312

Haebler v. Meyers et al.

(Supreme Court, General Term, First Department.

October 24, 1890.)

Headnote

Vacation of Attachment—Reinstatement—Restitution by Junior Lien Creditor.

Where an attachment is vacated on the motion of a junior lien creditor on the attached property, and the sheriff pays such creditor the proceeds of the attached property in satisfaction of his lien, such creditor cannot be compelled to make restitution to the attachment creditor of the amount so received on reversal of the order vacating the attachment. Affirming ante, 7.

Appeal from special term, Hew York county.

Action by Theodore Haebler against Elijah Meyers and J. Hafby Moses. Defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. Van Brunt, P. J ., sustained the demurrer. For report of proceedings at special term, see ante, 7; and, for former litigation, see 4 H. Y. Supp. 873; 9 H. Y. Supp. 725; 22 H. E. Rep. 167.

Argued before Brady and Daniels, JJ.

Marshall P. Stafford, for appellant. M. H. Cardozo, for respondent.

Aside from the reasons given by the presiding justice, (ante,.7,) it may be said that the plaintiffs’ duty, if they hoped to protect their lien by a successful appeal, required a stay of proceedings for which application should have been made, and which would doubtless have been granted. The plaintiffs and'defendants were both lienors, the right of each dependent upon the validity of the attachment by which the lien was created, and both subject to such disposition of it as might be made by the courts. When the plaintiffs’ attachment was set aside the defendants took priority,—indeed, of all the remaining attachments, if there were any,—and it became the duty of the sheriff to pay the money to them. They did not receive money which belonged to the plaintiffs, inasmuch as their supposed lien was declared worthless. It was the money of the judgment debtor which they received, and to which they were entitled by the law as then declared. There is no provision of law by which an attachment discharged by competent authority can be revived by the reversal of the judgment destroying it, with all its primitive advantages intact. The subsequent attaching creditor does no wrong in accepting the money under such circumstances. He avails himself of the law as declared, the result of which might be prevented by the diligence of the defeated attaching creditor, in obtaining a stay of proceedings, as already suggested. The j udgment appealed from should be affirmed, with costs.