Twelfth Ward Bank v. Columbia Publishing Co. — 99 N.Y.S. 908

Majority

p. 908

TWELFTH WARD BANK v. COLUMBIA PUB. CO. In re GILROY.

(Supreme Court, Appellate Term.

June 28, 1906.)

Headnote

I. Execution—Supplementary Proceedings—Receivers—Actions.

A question as to whether money arising from the sale of property replevied from the defendant by a receiver appointed in supplementary proceedings in the original action was turned over to the judgment ■ creditor in the original action voluntarily or under promise to return it if necessary is a question of fact, which can be settled only in an action, and not by motion made after demand for its return.

p. 909

2. Appeal and Error—Decisions Reviewable—Nature of Decision—Discretion—Action—Resettlement of Order.

An appeal does not lie from the exercise of the court’s discretion in denying a resettlement of an order already tnade.

Appeal from City Court of New York, Special Term.

Action by the Twelfth Ward Bank against the Columbia Publishing Company. From an order denying a motion made by the receiver appointed in supplementary proceedings to compel the plaintiff to refund certain moneys, and from an order denying a motion for a resettlement, the receiver appeals. Order denying the motion to refund affirmed.

Appeal from the order denying a resettlement dismissed.

Argued before GILDERSLEEVE, LEVENTRITT, and McCALL, JJ.

Charles W. Dayton, Jr., for appellant.

L. M. Berkeley, for respondent.

In an action in the City Court the plaintiff recovered judgment against the Columbia Publishing Company, the defendant. In supplementary proceedings based thereon Eugene C. Gilroy was appointed receiver. Subsequently, in an action brought by him in the Supreme Court, he replevied certain chattels, claiming that they were the property of the Columbia Publishing Company. He made a sale thereof, and turned over to the plaintiff the net proceeds, amounting to $1,000. Upon the trial of the replevin action the complaint was dismissed. An appeal taken from the judgment entered upon such dismissal resulted in a reversal and a new trial. That action is still pending. After the entry of the judgment against him, the receiver demanded a return of the money which he had paid to the plaintiff. That demand was refused. Thereupon he petitioned for an order directing the refund of the money. The motion was denied on the ground, as stated in the order, “that the moneys were paid by the petitioner voluntarily, and without any mistake of fact.”

We think this disposition was correct. The parties are in conflict as to the circumstances and agreement under which the money was paid over. The receiver claims that the payment was made at the request ■of the plaintiff, and upon the promise to refund it whenever the necessity should arise. The plaintiff claims that the payment was made voluntarily and unconditionally. A well-defined question of fact is therefore presented, and upon its solution the rights of the parties depend. That solution is to be had only in an action. After the entry of the order referred to, the receiver applied to resettle it, and he appeals also from the order denying that application.

An appeal does not lie from such an order. It is within the discretion ■of a court to modify or change an order already made by it, and over the exercise of such discretion an appellate court has no control. Matter of National Gramophone Corporation, 82 App. Div. 593 , 81 N. Y. Supp. 853 .

The appeal from the order denying the motion seeking the refund of the money paid must be affirmed, and the appeal from the order denying the motion to resettle must be dismissed, with $10 costs to the respondent. All concur.