Hendricks v. Morrill — 3 Silv. Sup. 21

Majority

p. 21

Joshua Hendricks, Respondent, v. Amos Morrill et al., Appellants.

Supreme Court, First Department, General Term,

July 9, 1889.

Headnote

Injunction. Attaching creditors.—Where attaching creditors make out a prima facie case, an order impounding the proceeds of an execution sale of the attached property, until the questions arising between the execution and attaching creditors are settled on a regular trial, is proper.

Appeal from an order continuing an injunction.

J. B. Mullaly, for appellants.

A. Kling, for respondent.

The order merely impounds the proceeds of the execution sale until the questions' arising between the execution and attaching creditors have been settled on a. regular trial.

The plaintiffs here, the attaching creditors, have certainly, made out a prima facie case sufficient to justify the retention of such proceeds pendente lite.

Without passing upon the merits in any way, we think, under these circumstances, that the proceeds should be held to await the final deterpiination of the action. The facts bring tbe case within the principle of Kingsley v. First National Bank of Bath ( 31 Hun, 329 ), and the injunction pendente lite is supported by Keller v. Payne (16 N. Y. State Rep. 245), and cases there cited.

The order should be affirmed, with ten dollars costs and disbursements.