Lyman v. Cartwright

New York Court of Common Pleas

Lyman v. Cartwright

3 E.D. Smith 117

DecidedMay 15, 1854

StatusPublished

This text of 3 E.D. Smith 117 (Lyman v. Cartwright) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyman v. Cartwright, 3 E.D. Smith 117 (N.Y. Super. Ct. 1854).

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Opinion

By the Court. Daly, J.

I doubt if the debt in question was ever duly attached. It does not appear that any inventory was made or that the notice required by § 235 of the Code, showing that the debt had been levied upon, was ever served. But assuming that the debt was attached in the hands of the defendants, they had notice, before they made any payment, that it had been assigned to the plaintiff for the benefit of H. N. Lyman’s creditors. (Muir v. Schenck, 3 Hill, 228.) The assignment was shown to them, and they knew that the respondents, as assignees, had acquired title before the service upon them of the attachment. They were not compelled to pay the debt to the sheriff. They had a right to refuse, and with a knowledge of the plaintiff’s prior title, they should have refused. All that the sheriff could do would be to sue them for the debt, and if, in an action brought by the sheriff under § 232, or by the plaintiff in the attachment, under § 238, they were compelled to pay the debt, they would have been protected by such a compulsory payment. (Holmes v. Remsen, 20 Johnson’s R. 229.) If they had paid the debt without any notice of the assignment, or had [119]*119paid it upon their liability to the attaching creditor being established by action, the plaintiff could have no claim upon them. But their payment was a voluntary act, after actual notice of the assignment,'which they made at their own risk and peril (Robinson v. Weeks, 1 Code R. N. S. 314), and does not discharge their liability to Lyman’s assignee.

Judgment reversed.

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By the Court. Daly, J.

I doubt if the debt in question was ever duly attached. It does not appear that any inventory was made or that the notice required by § 235 of the Code, showing that the debt had been levied upon, was ever served. But assuming that the debt was attached in the hands of the defendants, they had notice, before they made any payment, that it had been assigned to the plaintiff for the benefit of H. N. Lyman’s creditors. (Muir v. Schenck, 3 Hill, 228.) The assignment was shown to them, and they knew that the respondents, as assignees, had acquired title before the service upon them of the attachment. They were not compelled to pay the debt to the sheriff. They had a right to refuse, and with a knowledge of the plaintiff’s prior title, they should have refused. All that the sheriff could do would be to sue them for the debt, and if, in an action brought by the sheriff under § 232, or by the plaintiff in the attachment, under § 238, they were compelled to pay the debt, they would have been protected by such a compulsory payment. (Holmes v. Remsen, 20 Johnson’s R. 229.) If they had paid the debt without any notice of the assignment, or had [119]*119paid it upon their liability to the attaching creditor being established by action, the plaintiff could have no claim upon them. But their payment was a voluntary act, after actual notice of the assignment,'which they made at their own risk and peril (Robinson v. Weeks, 1 Code R. N. S. 314), and does not discharge their liability to Lyman’s assignee.

Judgment reversed.

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Bluebook (online)

3 E.D. Smith 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyman-v-cartwright-nyctcompl-1854.