Conger v. Sands

19 How. Pr. 8

• Court: The Superior Court of New York City
• Decided: March 15, 1860
• Status: Published

Opinion

Robertson, Justice.

I do not think the applicant in this case has obtained any lien on the funds in the hands of the receiver appointed in the actions brought to set aside the assignment made by the defendant, Sands & Paradise, to John Dean. As against all the world except creditors, proceeding directly to attack such assignment, John Dean is the owner of such assets, and the receiver is bound to pay them to him, unless a creditor intervene and commence a suit to vacate the assignment as against him.

The plaintiff, Conger, has only obtained such a lien as proceedings in a supplementary examination of a judgment debtor could give him, which is no more than such debtor could voluntarily give him, and he (the debtor) could not deprive Dean of his rights.

It is more than doubtful, too, whether he could acquire any lien in such proceedings until the appointment of a receiver was completed therein by the filing of his bond (Voorhies agt. Seymour, 26 Barb., 510) ; and such receiver was not appointed until after a lien was obtained in the other actions. (Edmonston agt. McLoud, 16 N. Y. Rep., 543.) I think, therefore, there is no ground for ordering a referee, as the applicant does not make out a prima facie case of lien.

The motion is denied, without costs.