Clark v. Gallagher — 21 N.Y. St. Rep. 314

Majority

p. 314

James Clark, Pl’ff, v. William L. Gallagher and Frank Gallagher, Deft’s.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888)

Headnote

Supplementary proceedings—Mechanics’ liens—Conflicting clams.

In supplementary proceedings by plaintiff, a judgment creditor of defendant, he sought to subject a debt owed by one Callahan to the payment of the judgment, and after Callahan 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 after-wards paid the money to the sheriff. Feld, that an order requiring payment of the fund to plaintiff should not be made before the trial of the-lien cases.

Appeal from an order of the special term of Dutchess county, denying a motion made by plaintiff 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. The facts are sufficiently stated in the opinion.

Ii. H. Husies, for app’lt; James Cf. Meyer, for respt’s.

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 $175.00.

The referee made his report the same day, and on the next day, July 26, 1888, Justice Barnard made an order directing Callahan to pay the $175.00 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-

p. 315

■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 ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.