Majority
p. 312Clark v. Gallagher et al. (Supreme Court, General Term, Second Department. December 13,1888.) Argued before Pratt and Dykman, JJ.
Headnote
Execution—Supplementary Proceedings—Conflicting Claims—Mechanics’ Liens.After the garnishee in supplementary proceedings had admitted an indebtedness to defendant for the erection of a house, he was served with an order ’requiring him to pay the amount to the sheriff, and on the same day was given notice of mechanics’ liens claimed by subcontractors of defendant for labor done on the same building. He afterwards paid the money to the sheriff. Held, that an order requiring payment of the fund to plaintiff should not be made before the termination of the Ben suits.
Appeal from special term, Dutchess county.
Supplementary proceedings by James Clark, a judgment creditor of William L. Gallagher, and Frank Gallagher, to subject a debt owed by John Callahan to William L. Gallagher to the payment of said judgment. Callahan admitted that he owed Gallagher $175 for the erection of a house, which was nearly completed. His answer was taken July 25, 1888. On the next day an order was made, and served on the day following, requiring Callahan to pay the amount to the sheriff. On the same day subcontractors of Gallagher served mechanic’s lien notices on Callahan, claiming that they had unpaid claims for labor on the same building. Callahan having paid- the money to the sheriff, the plaintiff, Clark, asked that it be paid to him, which the court refused to direct, and he appeals.
H. H. Rustes, for appellant. James G. Meyer, for respondents,
The plaintiff in this action recovered a judgment against the defendants on the 21st day of June, 1888, for $686.21, and the judgment was filed and docketed in the Dutchess county clerk’s office. On the 24th day of July, 1888, an order was issued by Justice Barnard, directing John Callahan to appear before a referee, and be examined in relation to property in his hands belonging to the defendants, or in relation to money due and owing from him to them. That order was served July 24, 1888. July 25, 1888, Callahan was examined before the referee, and admitted an indebtedness from him to William L. Gallagher of $175. The referee made his report the same
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-day, and on the next day, July 26, 1888, Justice Barnard made an order directing Callahan to pay the $175 to the sheriff of Dutchess county. That order was served on Callahan the next day, July 27, 1888, and on August 3, 1888, Callahan paid the money to the sheriff. Now comes the train of facts which raises the question involved on this appeal. On the 27th of July, 1888, two mechanics’ liens were filed against Callahan as the owner of property upon which William L. Gallagher had agreed to erect a building for Callahan. The plaintiff then applied to Mr. Justice Barnard upon this state of facts for an order directing the sheriff to pay the $175 in his hands on an execution to be issued upon the judgment in this action of Clark against Gallagher. That motion was denied, and the plaintiff has appealed from the order of denial. Our conclusion is that the motion was properly denied. The whole matter ■should be held in abeyance to await the result of the trial of the lien cases against Gallagher, in which actions the whole question will be decided after a more thorough examination than could be afforded upon a mere motion. The order should be affirmed, with $10 costs and disbursements.
Pratt, J., concurs.