Dodge v. Porter

13 Abb. Pr. 253

Opinion

By the Court.

Footnotes

•

*— Moncrief, J.

—If the plaintiffs recover judgments in their several actions, they will be entitled to be paid out of the property attached, whether it be the property of a firm composed of Porter and Gordon, prosecuting business under the firm-name of G. B. Gordon, or the individual property of either of said copartners. hTo reason is assigned why such property or its proceeds should be taken from the hands or custody of the sheriff. Section 232 of the Code requires the sheriff among other things, “to keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in the action in which the attachment issued.” And section 237 of the Code directs, “In case judgment be entered for the plaintiff, the sheriff shall satisfy the same out of the property attached by him.”

If the plaintiffs recover judgment in their attachment-suits, it will be their right to have them satisfied out of the proceeds of the attached property. If the sheriff pays the money to Porter, or to any one to whom he assigned after the attachments were levied, he will pay it contrary to his duty, and will be liable to the plaintiffs in the attachment-suits. There is no allegation that the sheriff or his sureties are irresponsible. We are not aware of any ground on which the order appealed from can be justified.

The order was, therefore, erroneous in directing the transfer of the property attached from the possession of the sheriff, and should be reversed without costs.

Order reversed.

Present, Bosworth, Ch. J., Hoffman, Woodruff, Moncrief, and White, JJ.