Beebe v. Kenyon — 10 N.Y. Sup. Ct. 73

Majority

p. 73

ALLEN H. BEEBE and THOMAS GOODENOUGH, Respondents, v. JOHN S. KENYON.

Headnote

Money due to judgment debtor—when order directing payment of, to judgment creditor will be vacated—assignment of, by debtor before making of order—effect.

Where a person has been ordered to pay over to a judgment creditor a sum of money due from him to the judgment debtor, and subsequently he is notified that the judgment debtor had, prior to the making of the order, absolutely assigned all his interest in the claim against him, the order directing him to pay over the money should be vacated.

The validity and good faith of the alleged assignment cannot be assailed upon a motion; that can only be done in an action brought by a receiver.

Appeal by Newton S. Briggs from an order of Mr. Justice Donohue, at Special Term, adjudging Briggs to be in contempt of an order made by Mr. Justice Lawrence, directing Briggs to pay over to the plaintiffs the sum of $275.44, being the amount admitted by Briggs to be due from him to the defendant, at the time Briggs was examined and the order to pay over the said sum was made ; and also denying a motion, made by Briggs on the return of the order to show cause why he should not be punished for contempt, to vacate the order granted by Justice Lawrence.

Erasims New, for the appellant.

Beebe, Wilcox <& Hobbs, for the respondents.

At the time that the order was made, directing Briggs to pay over to the plaintiffs the sum of $275.44, it appeared from his examination that he admitted that he was indebted to the judgment debtors in that amount. The order was therefore proper when made.

p. 74

When the motion to punish for contempt came on to be heard, it appeared that, long prior to the making of the order for the violation of which it was sought to punish Briggs, the defendant had absolutely assigned all his interest in his claim against him. Briggs, at the hearing on the motion to punish for contempt, moved on the affidavits read in opposition to that motion, as I infer from the recitals in the order appealed from, to vacate the original order directing him to pay over. This was denied, and an attachment was directed to issue. It seems to me that the motion of Briggs to vacate the order to pay over should have been granted. The defendant having assigned the claim against Briggs long prior to the proceedings against him on which the order was based, there was no indebtedness to the defendant on the part of Briggs. The indebtedness was to the defendant’s assignees.

The order to pay over will be of no avail in any action which may be brought by the assignees of the defendant against Briggs. It will be no defense to him.

"Under these circumstances, Briggs having disclaimed any intentional disrespect to, or disobedience of, the order of the court directing him to pay over, it would be harsh in the extreme, to enforce the original order, and to impose a fine upon him.

We cannot, on this motion, try the question of the validity and good faith of the alleged assignment by the defendant. That can only be done in an action brought by a receiver; for the purposes of this motion the assignment must be deemed to be valid.^[1] The order appealed from should be reversed without costs, and the order, directing the payment over by Briggs, should be vacated; the plaintiff to be at liberty to apply for the appointment of a receiver, at the chambers of the court.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.

* Barnard v. Kobbe, 54 N. Y., 516 ; Rodman v. Henry, 17 id., 482.