Bennett v. Irving Trust Co.

283 A.D. 1033, 131 N.Y.S.2d 472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1954
• Status: Published

Opinions

Per Curiam.

The trial court was justified on the evidence submitted in

finding in favor of plaintiff. The judgment should be modified, however, in respect to interest, which should run only from the date of the entry of judgment. Plaintiffs were not entitled to the proceeds of the attachment until judgment was entered (Civ. Prac. Act, § 969, subd. 1), and are not entitled to recover in this action in aid of the attachment more than they could collect from the Sheriff upon entry of the judgment (Friede v. National City Bank, 250 N. Y. 288; Korytkowski v. Greniewicki, 220 App. Div. 237). The Sheriff would neither have received nor paid interest on the amount attached if it had been paid over to him on service of the warrant, and plaintiffs are not entitled to the interest they would not have received merely because the funds were not paid over to the Sheriff upon demand and an action in aid of the attachment was required to determine ownership of the funds attached.

As modified by the elimination of interest up to the time of entry of judgment, the judgment should be affirmed, without costs.