City of New York v. Cody

New York Supreme Court

City of New York v. Cody

44 Misc. 270, 89 N.Y.S. 886

DecidedJuly 15, 1904

StatusPublished

This text of 44 Misc. 270 (City of New York v. Cody) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Cody, 44 Misc. 270, 89 N.Y.S. 886 (N.Y. Super. Ct. 1904).

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Opinion

Gaynor, J.:

The essential facts are these: The plaintiff owed the defendants Cody Brothers $9,962,53. They [271]*271assigned the debt to George Fruh, and he assigned it to the defendant Cahen. They afterwards also assigned it to Teresa Cody, and she assigned it to the defendant Elizabeth Cody.

After notice of these assignments had been filed with the comptroller of the plaintiff, the defendants Fleer and others, as judgment creditors of Cody Brothers, brought suits against them and this plaintiff (the City of Hew York) and the said Teresa and Elizabeth Cody to set aside the said assignment to the said Teresa Cody, and to reach the fund and have it applied on their judgments; and they prevailed in their suits.

Instead of paying over the money under the said judgments, the city now brings this interpleader suit, making the said Cahen a defendant, as she claims the fund under the said prior assignment to Fruh. Cahen was not a defendant in the said judgment creditor suits, nor did the city in its answer therein set up her claim. It. answered by a general denial only.

As the said judgment creditors knew of the assignment under which Cahen claimed the fund (they produced it and put it in evidence on the trial of their suits), but nevertheless omitted to make Cahen a defendant, their claim now that the city should be defeated here for laches in not pleading the claim of Cahen in the said suits is untenable. They were in no way misled by the city, and hence there is no foundation for their claim of laches against the city. The neglect of Cahen not being a party was primarily theirs. If the city alone-had knowledge of the Cahen claim, or if it was under a duty to cause it to be litigated in the said suits, and the plaintiffs therein were unable to cause it to be so litigated, the case here would be different (Baker v. Brown, 64 Hun, 627).

Judgment for the plaintiff without costa.

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Gaynor, J.:

The essential facts are these: The plaintiff owed the defendants Cody Brothers $9,962,53. They [271]*271assigned the debt to George Fruh, and he assigned it to the defendant Cahen. They afterwards also assigned it to Teresa Cody, and she assigned it to the defendant Elizabeth Cody.

After notice of these assignments had been filed with the comptroller of the plaintiff, the defendants Fleer and others, as judgment creditors of Cody Brothers, brought suits against them and this plaintiff (the City of Hew York) and the said Teresa and Elizabeth Cody to set aside the said assignment to the said Teresa Cody, and to reach the fund and have it applied on their judgments; and they prevailed in their suits.

Instead of paying over the money under the said judgments, the city now brings this interpleader suit, making the said Cahen a defendant, as she claims the fund under the said prior assignment to Fruh. Cahen was not a defendant in the said judgment creditor suits, nor did the city in its answer therein set up her claim. It. answered by a general denial only.

As the said judgment creditors knew of the assignment under which Cahen claimed the fund (they produced it and put it in evidence on the trial of their suits), but nevertheless omitted to make Cahen a defendant, their claim now that the city should be defeated here for laches in not pleading the claim of Cahen in the said suits is untenable. They were in no way misled by the city, and hence there is no foundation for their claim of laches against the city. The neglect of Cahen not being a party was primarily theirs. If the city alone-had knowledge of the Cahen claim, or if it was under a duty to cause it to be litigated in the said suits, and the plaintiffs therein were unable to cause it to be so litigated, the case here would be different (Baker v. Brown, 64 Hun, 627).

Judgment for the plaintiff without costa.

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Bluebook (online)

44 Misc. 270, 89 N.Y.S. 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-cody-nysupct-1904.

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