Reischmann Co. v. Mulvihill

Appellate Terms of the Supreme Court of New York

Reischmann Co. v. Mulvihill

136 N.Y.S. 71

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 21, 1912

StatusPublished

This text of 136 N.Y.S. 71 (Reischmann Co. v. Mulvihill) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reischmann Co. v. Mulvihill, 136 N.Y.S. 71 (N.Y. Ct. App. 1912).

Pincite

Opinion

BIJUR, J.

The point raised on this appeal is that plaintiff is entitled to $25 for cartage furnished, at the request or with the approval of defendant, a marshal, in aid of a levy under an execution, and that the judgment debtor approved the charge and voluntarily ■ made the payment to the defendant, who refused to turn it over to the plaintiff.

The defense—somewhat confused by disingenuous calculations made by the defendant—is merely that the judgment debtor makes a claim upon the defendant for the same amount. Under such circumstances, defendant might appropriately, under section 187 of the Municipal Court Act (Laws 1902, c. 580), have procured an order permitting him to pay the money into court. He has, however, preferred to test the issues on the merits, and, as these are plainly against him, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event'.

• Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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BIJUR, J.

The point raised on this appeal is that plaintiff is entitled to $25 for cartage furnished, at the request or with the approval of defendant, a marshal, in aid of a levy under an execution, and that the judgment debtor approved the charge and voluntarily ■ made the payment to the defendant, who refused to turn it over to the plaintiff.

The defense—somewhat confused by disingenuous calculations made by the defendant—is merely that the judgment debtor makes a claim upon the defendant for the same amount. Under such circumstances, defendant might appropriately, under section 187 of the Municipal Court Act (Laws 1902, c. 580), have procured an order permitting him to pay the money into court. He has, however, preferred to test the issues on the merits, and, as these are plainly against him, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event'.

• Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

136 N.Y.S. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reischmann-co-v-mulvihill-nyappterm-1912.