W. Houghton, Saratoga county judge, directing the New York & Hake Champlain Transportation Company to appear before a .referee and be examined in relation to an indebtedness due from it to the defendant. June 8 and 10, 1891, the treasurer and general superintendent of the tow-path department of the company were examined before the referee, and testified to indebtedness from the company to the defendant of about $240.
The referee made his report June 10, 1891, and on the 13th -day of June, 1891, Judge Houghton made an order directing the company to pay the $240 =to the sheriff of Saratoga county. That order was served on the company June 15,1891, and subsequently the company paid the money ($243.20) to the sheriff. On the 1st day of July, 1891, an order was made directing the sheriff to apply the money so received in his hands upon an execution then in his hands in favor of the judgment creditor against the defendant.
On the 2d day of July, 1891, the appellant Louis Bourdon -commenced an action against the company for $243.20, the .amount paid by the company to the sheriff pursuant to the order ■of July 1st, 1891.
On the 8th day of July, 1891, upon the application of the company, Judge Houghton granted an order to show cause, on the 13th day of July, 1891, why the order granted June 13, 1891, should not be vacated and set aside, and an order made directing said money to be refunded and repaid to said company.
Upon the return of said order the order appealed from was made, granting the application, and also directing that the company pay said sum to the sheriff, there to remain until the further order of the court upon notice to all parties interested.
Thomas O' Connor (Nathaniel G Moalc, of counsel), for app’lt ; J. W. Atkinson, for resp’t.
This court has heretofore determined that an order directing a third party to deliver over property of a judgment debtor' in his hands can only be made where the right to the possession of the property is substantially undisputed. Hayes v. McClelland, 20 W. Dig., 393.
It has been also determined that in proceedings against a third party to reach money or property alleged to be in his possession hut due, or belonging to, the judgment debtor, the judge has no authority to decide the question of indebtedness, or ownership, summarily and compel its payment or delivery. West Side Bank v. Pugsley, 47 N. Y., 368 . In the case before us there is a substantial dispute as to whether the third party is indebted to the judgment debtor; the money in question is claimed to be due to another than the judgment debtor, and such claimant has brought an action to enforce its payment; the judgment debtor denies that it belongs to her. Under such circumstances the county judge had no authority to summarily decide the question, and direct the payment of the money to the sheriff or any other person.
The order appealed from should be reversed, with ten dollars costs and printing disbursements.
Putnam, J., concur; Mayham, P. J., not sitting.