Jordan v. Volkening — 21 N.Y. Sup. Ct. 118

Majority

p. 118

MARY A. JORDAN, Administratrix, etc., and HENRY S. WILSON, and others, Executors, etc., Appellants, v. HENRY VOLKENING, impleaded, etc., Respondents.

Headnote

Undertaking on appeal — ■money deposited in lieu of — liens upon.

When upon an appeal to the Court of Appeals from a judgment of the General Term, money is deposited in court in lieu of an undertaking, such deposit is subject only to the decision of the appeal, to which it relates, and upon the reversal of the judgment the fund is released from all liens except those created by judgment or assignment.

The plaintiff is not entitled, on showing that the defendant who made such deposit is insolvent, to have the money held as security for the payment of any judgment he may recover on a new tidal.

Appeal from an order directing the New York Life Insurance- and Trust Company to pay to Nelson Smith as assignee of one Gloeckner $1,250, part of a deposit of $4,000, and to said Smith for himself, and as attorney for one Gloeckner, the balance of said deposit.

The plaintiffs, on February 5, 1876, recovered judgment against the defendant for $3,828.98. Defendant, on appeal to the General Term, moved to have the judgment marked, secured on appeal, and under an order in this action of February 19, 1876, the $4,000 was deposited by defendant in the Trust Company to the credit of

p. 119

this action. After an affirmance by the General Term, and an appeal to the Court of Appeals, said deposit ivas made a deposit in that court. The Court of Appeals having reversed the judgment and granted a new trial, application was made by an order to show cause in the action, why such moneys should not be paid to Nelson Smith and Ludwig G. Gloeckner. Gloeckner alleged in his affidavit that Yolkening had assigned the deposit to him June 3, 187(5, and that he had assigned $1,250 to Mr. Smith. The appellants alleged that Volkening was utterly insolvent, and that the Marine Court appointed a receiver of his property in supplementary proceedings, October 10, 1876 ; that this deposit was plaintiff’s only security for their recovery in the action, which is on an undertaking given by defendants as sureties on an injunction.

George H. Forster, for the appellants.

Nelson Smith, for the respondents.

The money deposited in this case in lieu of an undertaking, was subject only to the decision of the appeal to which it related. When the court of appeals reversed the judgment the fund was released from all liens except those created by judgment or assignment. The plaintiffs not being judgment creditors could not stay the payment of it, and especially as it had been assigned by the depositor. The attempt to convert it into a security for the payment of the plaintiff’s debt has no precedent and cannot be sanctioned. Order affirmed with ten dollars costs and the disbursements of this appeal.

Davis, P. J., and Ingalls, J., concurred.

Order affirmed with $10 costs and disbursements.