Pate v. Hoffman

New York Supreme Court

Pate v. Hoffman

16 N.Y.S. 74, 68 N.Y. Sup. Ct. 386, 40 N.Y. St. Rep. 915, 61 Hun 386, 1891 N.Y. Misc. LEXIS 318

CourtNew York Supreme Court

DecidedOctober 16, 1891

StatusPublished

Cited by1 cases

This text of 16 N.Y.S. 74 (Pate v. Hoffman) 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

Pate v. Hoffman, 16 N.Y.S. 74, 68 N.Y. Sup. Ct. 386, 40 N.Y. St. Rep. 915, 61 Hun 386, 1891 N.Y. Misc. LEXIS 318 (N.Y. Super. Ct. 1891).

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Opinion

Ingraham, J.

The right of the appellant to hold possession of the property upon which he had a lien was not affected by the recovery of judgment for the amount of the indebtedness to secure the payment of which he had the property as security. It had the effect of settling the amount of the defendant’s liability to the petitioner, but did not affect the lien upon the security, or his right to have the same sold, and the proceeds applied to the payment of the amount due. Kor did the fact that a receiver of the debtor’s property, appointed on the application of another creditor, was extended so that the receivership would include the judgment obtained by the petitioner, affect the petitioner’s right to hold the security until his debt was paid. Petitioner had the right to take any proceeding to collect his judgment without resorting to the security. If his judgment had been collected, then he would have no further interest in the property held as security, and such property would belong to the receiver, and could be applied by him to the payment of [75]*75the creditor at whose instance he had been appointed, but until such judgment was paid the lien upon the property was superior to the title of the receiver. Petitioner, having failed to collect his judgment by the proceedings instituted, had then the right to resort to the property upon which he had a lien to secure the payment of the debt, and for such purpose to commence an action to have the property sold, and its proceeds applied to the payment of his demand. To such an action the receiver in whom had vested the title to such property subject to the lien was a proper party, and he should have been allowed to make the receiver a party to such an action. We think, therefore, that the motion should have been granted. Order appealed from reversed, with $10 costs and disbursements, and motion granted. All concur.

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Ingraham, J.

The right of the appellant to hold possession of the property upon which he had a lien was not affected by the recovery of judgment for the amount of the indebtedness to secure the payment of which he had the property as security. It had the effect of settling the amount of the defendant’s liability to the petitioner, but did not affect the lien upon the security, or his right to have the same sold, and the proceeds applied to the payment of the amount due. Kor did the fact that a receiver of the debtor’s property, appointed on the application of another creditor, was extended so that the receivership would include the judgment obtained by the petitioner, affect the petitioner’s right to hold the security until his debt was paid. Petitioner had the right to take any proceeding to collect his judgment without resorting to the security. If his judgment had been collected, then he would have no further interest in the property held as security, and such property would belong to the receiver, and could be applied by him to the payment of [75]*75the creditor at whose instance he had been appointed, but until such judgment was paid the lien upon the property was superior to the title of the receiver. Petitioner, having failed to collect his judgment by the proceedings instituted, had then the right to resort to the property upon which he had a lien to secure the payment of the debt, and for such purpose to commence an action to have the property sold, and its proceeds applied to the payment of his demand. To such an action the receiver in whom had vested the title to such property subject to the lien was a proper party, and he should have been allowed to make the receiver a party to such an action. We think, therefore, that the motion should have been granted. Order appealed from reversed, with $10 costs and disbursements, and motion granted. All concur.

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Bluebook (online)

16 N.Y.S. 74, 68 N.Y. Sup. Ct. 386, 40 N.Y. St. Rep. 915, 61 Hun 386, 1891 N.Y. Misc. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pate-v-hoffman-nysupct-1891.

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