Balestier v. Metropolitan National Bank — 6 N.Y. St. Rep. 643

Majority

p. 643

John A. Balestier, Receiver, etc., Resp’t, v. The Metropolitan National Bank of New York et al., Appl’ts.

(Supreme Court, General Term, First Department,

Filed March 3, 1887.)

Headnote

1. Practice—Payment of money into court—Insolvency.

A party will not be obliged, by reason of insolvency, to pay into court money in relation to which an action is pending.

2. Attachment—Grounds for—Insolvency.

The laws of this state do not authorize an attachment against the property of a resident debtor, simply by reason of his insolvency.

Appeal from an order directing the defendant’s bank to pay 81,400 into court.

Fisher A. Baker, for app’lts; William H. Secor, for resp’t.

The plaintiff, as receiver of the property and effects of Thomas C. Clark, sues the Metropolitan National Bank to recover $1,100, being a portion of $5,000 in possession of the bank, and alleged to be the property of the said Clark. The bank denies, by its answer, that the said sum of $5,000, or any part thereof, is his property, or was his property at the time of the beginning of the action, and alleges, on the contrary, that the money is its own. Upon an affidavit that the defendant bank is insolvent, which statement is denied in its behalf, the plaintiff has obtained an order at special term requiring the bank forthwith to pay into court the sum of $1,400 to the credit of this action, and to abide the event thereof. Of this amount, the sum of $1,100 appears to be on account of the plaintiff’s claim, and $300 for costs, interest and expenses.

We have been referred to no principle or authority upon which such an order can be sustained. Even assuming it to be true that the defendant bank is insolvent, the laws of this state do not authorize an attachment against the property of a resident debtor simply by reason of his insolvency, and the practical effect of this order is the same as that of an attachment. To sanction the practice of thus directing defendants to pay money into court, under the circumstances disclosed in this case, would be to introduce a new method of legal procedure into the jurisprudence of this state.

The order appealed from should be reversed, with costs and disbursements.

Van Brunt, P. J., and Macomber, J., concur.