Adams v. Welsh — 43 N.Y. Super. Ct. 52

Majority

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HENRY K. ADAMS, Plaintiff and Appellant, v. S. CHARLES WELSH and JOHN H. WELSH, Defendants and Respondents.

Headnote

I. Sheriff's Law.

1. LEVY, WHAT CANNOT BE LEVIED ON.

(66.) Money collected by a sheriff* under an execution cannot, while it remains in his hands, be levied on by him under an execution against the party in whose favor it was so collected.

2. SECTION 193 OF THE CODE OF PROCEDURE.

1. Payment to sheriff by debtor of a judgment debtor against whom he holds an execution.

1. Authority of sheriff over the money received.

(66.) Has no authority to apply it to the satisfaction of an execution issued against the plaintiff in the execution upon which the payment was made.

2. Payment to Sheriff, When not a Discharge.

1. Assignment.—After the original creditor has assigned the debt, the debtor is no longer indebted him; therefore, a payment thereafter made by such debtor to a sheriff holding an .execution issued on a judgment recovered against his origi

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nal creditor, does not fall within the provisions of section 193, and is not a discharge of the debt.

Decided November 5, 1877.

(a.) Notice of Assignment.—This although he had no notice of the assignment before such payment.

Before Speir and Freedman, JJ.

An appeal from an order of the special term directing the sheriff of New York county to satisfy an execution issued to him in this action against the property of the defendants, upon the ground that the defendants have paid on account of another execution issued against the plaintiff by virtue of section 293 of the Code of Procedure.

The defendants on April 27, 1877, recovered, in the court of common pleas, a judgment as executors of George W. Welsh against Henry K. Adams for the sum. of $496.15, and on the same day issued execution thereon against him to the sheriff of the county of New York for the amount of the judgment and costs. On April 30, 1877, Henry K. Adams, the plaintiff in this action, obtained a judgment against the defendants for the sum of $134.20, and by his attorney gave notice of the entry of the judgment to defendants attorney. After the receipt of this notice the defendants, on April 30, 1877, paid to the sheriff, under section 293 of the Code, for and on account of Adams on the execution issued against him in the court of common pleas, the sum of $134.20, the full amount of the judgment recovered by him, and took a receipt therefor from the sheriff. Thereafter, on June 1, 1877, an execution was issued to said sheriff on the judgment recovered by said Adams. This is the execution to compel the satisfaction whereof by the sheriff this motion is made.

E. Platt Johnson, attorney, and of counsel for

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appellant, upon the points stated in the head-notes, urged :

—I. A voluntary payment, under section 293 of the Code, on account of an execution issued against a person to whom the parties paying claim to be indebted, if made after an assignment in good faith, by the person against whom the execution is issued, of the debt intended to be paid, will not avail the parties paying as against the assignee, or constitute a defense in proceedings by him against them for the recovery of the debt so assigned to him (Robinson v. Weeks, 1 Code R. N. S. 311, and 6 How. 161 ; Richardson v. Ainsworth, 20 How. Pr. 521 ; Huse v. Guyot, 3 Sup. Ct. [T. & C.] 790: Countryman v. Boyer, 3 How. Pr. 386 ; Baker v. Kenworthy, 41 N. Y. 216 , approving Richardson v. Weeks and Richardson v. Ainsworth).

II. The fact that the defendants had no notice of the assignment until after the payment to the sheriff was made, makes no difference (Robinson v. Weeks, 1 Code R. N. S. 311, and 6 How. 161 ; Richardson v. Ainsworth, 20 How. Pr. 521 ; Huse v. Guyot, 3 Sup. Ct. [T. & C.] 790).

Dennis Quinn, attorney, and of counsel for respondents, upon the questions determined by the court, urged :

—I. A payment made under sections 294-207 of the Code of Procedure, to a judgment creditor, of a debt due by a third party, to the judgment debtor, in the absence of notice of the assignment of the debt, is a good and valid payment, and protects the third party from the obligation of paying a second time (Gibson v. Haggerty, 37 N. Y. 555 ; Lyman v. Cartwright, 3 E. D. Smith, 118; Mallory v. Norton, 21 Barb. 424 ; Huntington v. Potter, 32 Id. 300; Muir v. Schenck, 3 Hill, 228 ; Robinson v. Weeks, 6 How. 161 ).

II. A payment made in conformity with section 203, the language of which is broad and full, should have equal force and effect given to it as a payment

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made under the provisions of section 294. It is confidently claimed, on the part of the respondents, that the words used in section 293 expressly authorize such a payment as the one made by them. It cannot be imputed to the legislature that this section was enacted to entrap the unwary ; on the contrary, the fair interpretation of the words used is obviously to enable a debtor to pay, without additional expense or litigation, a just and undisputed debt (Muscott v. Woolworth, 14 How. Pr. 480 ).

III. It is also contended that, on April 30, 1877, after notice regularly given of the entry of the judgment in this court against S. Charles Welsh and John H. Welsh, the respondents, and in the absence of notice of the assignment of the judgment, the defendants, or either of them, could make a good and valid payment of the amount thereof to Henry K. Adams, the appellant, and that such payment would be operative and valid against his assignee. It is further contended that a payment to the sheriff on that day is equivalent, in contemplation of law, to a payment to Adams himself. Notice was intended to protect the debtor, not the creditor, and the assignee of the judgment withheld notice of the assignment at his own risk and peril (Baker v. Kenworth, 41 N. Y. 218 ; Robinson v. Weeks, 6 How. 161 ; Muir v. Schenck, 3 Hill, 228 ; Gibson v. Haggerty, 37 N. Y. 555 ; Lyman v. Cartwright, 3 E. D. Smith, 118; Hermans v. Ellworths, 64 N. Y. 159 ).

—The rule has been uniform in this State and in the United States courts, that money collected while in the hands of the sheriff is not subject to levy upon an execution against the party in whose favor it .was collected. The section of the Code under which the order was made provides, that after the issuing of the execution against property,

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any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid. It is insisted by the defendant’s counsel that under this section the sheriff was authorized to satisfy the demand against him for the money collected, by applying it to the payment on the execution in his hands against the party to whom the money was due. I do not think this is the construction of the statute. The debtor is to pay his debt to the sheriff, and take his receipt therefor to discharge his debt. This does not authorize the sheriff to apply the money upon another execution. A voluntary payment by a debtor, without his creditor’s authority, cannot be upheld, whether it be to a creditor of his creditor or to any other person. It would be exceedingly anomalous bo permit a debtor to determine which of the creditors of his creditor shall be first paid, and select some friend of his own as deserving his favor. Johnson’ s claim to favor as the creditor of Adams was in law equal to that of anybody else. This construction of the statute has, in terms, been settled in Baker v. Kenworthy, 41 N. Y. 215 , and although the case does not present the same facts, the principle is established.

But the defendants do not come within the description of persons named in the section. The words are, “any person indebted to the judgment debtor may pay,” &c.. The defendants cannot be said to be indebted to Adams when the latter had assigned all his interest to Johnson. The language of the section cannot be enlarged by applying it to any case other than that provided for by the statute itself. Knowledge of the assignment is immaterial, the fact alone determines the case contemplated. The assignment was made before any judgment was recovered, and is valid if founded upon professional services rendered and to be

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rendered. The consideration is meritorious. There is nothing in the papers showing any fraud.

The order appealed from must be reversed with costs.

Freedman, J., concurred.

Cases cited

Richardson v. Ainsworth 20 How. Pr. 521 N.Y. Sup. Ct. p. 54
Countryman v. Boyer 3 How. Pr. 386 N.Y. Sup. Ct. 1849-01-10 p. 54
Mallory v. Norton & Scott 21 Barb. 424 N.Y. Sup. Ct. 1856-01-01 p. 54
Heermans v. Ellsworth 64 N. Y. 159 N.Y. 1876-02-08 p. 55
Baker v. Kenworthy 41 N. Y. 215 N.Y. 1869-09-27 p. 56