Fitgerald v. Blake

28 How. Pr. 109

• Court: New York Supreme Court
• Decided: May 15, 1864
• Status: Published

Opinion

By the court, The plaintiff appeals from an order directing a sum of money now in the hands of the sheriff, derived from the rents of real estate attached under a warrant of attachment issued in this action against the defendant as a non-resident debtor, to be applied to the satisfaction of an outstanding mortgage against one of the houses and lots so attached.

Leonard, J.

The right of the sheriff to collect these rents during the pendency of the litigation herein, to determine the right of the plaintiff to recover the demand alleged to be due from the defendant, has not been disputed. The plaintiff insists that the wife of the defendant is the owner of two of the houses from which some part of the rent was derived. This objection is met by the defendant fully, by obtaining the consent of his ivife in writing, and filing it, to the application of the rent of these houses in the manner asked for by the defendant. I am unable to perceive that the security of the plaintiff will be in any way impaired by the application of the rents in the manner asked for, while there will be a continual loss of interest if the money remains uninvested, in the hands of the sheriff.

The order should be affirmed, with $10 costs to the respondent, to await the final judgment in the action.