Gross v. Graves — 25 N.Y. Super. Ct. 707

Majority

p. 707

Gross, plaintiff, vs. Graves, defendant.

Headnote

Á receipt by the defendant, of money, as the attorney of the plaintiff, no part of which he has paid to her, gives the plaintiff a right, as of course, to an order of arrest, under subd. 2 of sec. 179 of the Code, and upon obtaining judgment, she can issue execution against the person of the defendant, irrespective of any order of arrest having been granted.

(Before Moncrief, J. at special term,

October, 1864.)

Motion to vacate order of arrest.

It is admitted -by the defendant that he received money as the attorney for the plaintiff, and that he has not paid the amount so received, or any part thereof, over to her. Under such circumstances, the plaintiff is entitled, as of course, to an ordey of arrest under subdivision 2 of section .179

p. 708

of the Code, and upon obtaining judgment in this action, can issue an execution against the person of the defendant, irrespective of any order of arrest having been granted. If the defendant believed that the defendant, in the action in which the money was paid into court, would have a legal claim against him, in case the money was paid to the plaintiff, he possibly could have relieved himself from all apprehension by obtaining leave to pay the money back into court. Whether the plaintiff will recover the whole amount claimed by her, or the defendant be allowed to set off charges for services alleged to have been rendered, will be best ascertained upon the trial of this action; I am constrained to deny the motion to discharge the order of arrest, with ten dollars costs.