Clarkson v. Dunning — 22 N.Y. St. Rep. 76

Majority

p. 76

Theodore Clarkson, App’lt, v. Frances G. Dunning, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

Agreement—Monet deposited to credit oe action—Appeal.

Where under an agreement between the parties to an action brought to set aside a conveyance of real estate, it was provided that the land, the subject of the action, should be sold and the proceeds (which was to stand in the place of the land) deposited in a trust company, subject to the order of the court in the action after the final judgment and the determination of the final appeal. The case was decided in favor of the plaintiff and the defendant obtained a stay with a view to appeal. Before the order was served the plaintiff drew out the money on deposit: Held, that the act was entirely unsustained by the stipulation; and that the plaintiff had no right to the fund so long as an appeal can be taken from the judgment at special term.

Appeal from an order made at special term requiring the plaintiff’s attorney to redeposit in the United States Trust Company the sum of $12,239.

p. 77

Thomas M. Wheeler, for app’lt; Harris & Corwin, for resp’t.

—The plaintiff brought an action to set aside a conveyance to land upon the ground that the same was a fraud upon creditors. A notice of lis pendens was duly filed, and subsequent thereto an agreement was made bedweenjthe parties designed to permit the defendant to sell the land and to deposit the proceeds to take the place of the land. Both parties are anxious to sell the property.

The agreement provided “that the said notice of pendency ■of action may be canceled upon the condition that the said -sum of $12,000 shall be deposited in the United States Trust Company of the city of Hew York, subject to an order of "this court in this action, after final judgment, and the determination of the final appeal herein. It being understood that the said sum of $12,000 is to stand in the place of and to represent the premises described in the complaint.

The stipulation is not to affect the rights of either party Herein, or to the taking of any appeal in this action, nor the rights of either party to this action to require security on any appeal, and any appeal herein is to be taken, and security to stay proceeding therein to be given in this manner as if this stipulation had not been made, and as if said land should remain the subject of litigation in this action, the only effect of this stipulation being to substitute the proceeds of said sale in the place of the land.” The case was decided in favor of the plaintiff, July 23, 1888, and the defendant obtained a stay on August, 1, 1888, with a view to appeal, and before an order was served, the plaintiff had drawn out the $12,000. This was an act entirely unsustained by the stipulation, and directly in opposition to its true intent and meaning. The money was to remain until after a determination ■of the final appeal herein.

The deposit was (it is said), in the place of the land, but the plaintiff had no right to the land as long as an appeal could be taken from the judgment at special term.

If after action no security upon appeal to stay proceedings hereby appealed was given, a new question will be presented, whether or no the fund can then be withdrawn before the final appeal is decided.

The present order is right, and should be affirmed, with ■costs and disbursements.

All concur.