Rothschild v. Gould

84 A.D. 196, 82 N.Y.S. 558

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinions

Patterson, J.:

The relator applied to the court below for a peremptory writ of mandamus to compel the chamberlain of the city of Hew York to pay over to him the sum of $5,000 which had been deposited with the chamberlain in lieu of bail for one Moses Schwartz, who was under indictments in the Court of General Sessions of the Peace of the County of Hew York. At the time the money was deposited a receipt was given in which it is stated that Harry Rothschild “ for the defendant above named, has deposited with the Chamberlain of the City of Hew York, this day, the amount of Five thousand dollars * * * as security for said defendant’s appearance * * * pursuant to Section 586 of the Code of Criminal Procedure.” On the 6th day of January, 1903, the indictments- against Schwartz were dismissed on motion of the district attorney. On the 2d of February, 1903, an order was made by one of the justices of the Court of General Sessions of the Peace of the County of Hew York directing that, by the consent of the district attorney, the “ County Treasurer” of Hew York refund the money deposited as aforesaid to the defendant. Upon this order being presented to the chamberlain he declined to pay the money, for the reason that he had been enjoined by orders of justices of the Supreme Court — one made in June, 1902, and the other in August, 1902—from transferring or making any disposition of any property belonging to Moses Schwartz. These restraints were contained in orders for the examination of the chamberlain in supplementary proceedings brought by judgment creditors of Schwartz. ■ The only reason, ascribed by the chamberlain for not-paying the money is the restraint contained in tho,se orders. On the chamberlain’s refusal to pay, the relator made application for a peremptory writ of mandamus, stating in his moving papers that the $5,00,0 was his money ; that he had deposited it ¡in lieu of bail, and also showing by an affidavit of Schwartz that the money belonged to the relator and hot to him, Schwartz. A demand had been duly made on the chamberlain for the money, and an affidavit of Schwartz setting forth the facts and containing' a request that- the $5,000 be paid over to Rothschild was presented to the chamberlain before application for a writ was made. The application has been denied by the court below and the relator appeals.

In People ex rel. Meyer v. Gould (75 App. Div. 524) we held tliat where money is deposited-pursuant to section 586 of the Code of Criminal Procedure, by a third party, in lieu of bail for one under indictment and as security for the appearance of the person so indicted, that money is presumed to be the property of the defendant 'in the indictment only for the purposes of that particular pro- ■ ceeding, and where the person so indicted executes an instrument admitting that the money so deposited does not belong to him, but to a third person who deposited it, and directing that the money ¡be paid to such third person, a judgment creditor of the defendant in the indictment has no interest in the money. That, however, was a proceeding brought by a creditor in which no question involving the real ownership of the money could 'have been litigated. . It Was shown that the money actually belonged to the third party who deposited it, and the fact was not disputed.

The case.just adverted to is not controlling in this proceeding. Here the chamberlain was ¿njoined from paying out the money ’by orders which recite that it appeared to the satisfaction of the justices who issued them that tlie chamberlain had in his possession personal property of the defendant exceeding ten dollars in value. ‘ The order of the Court of General Sessions directed the chamberlain to pay the money to the defendant. The injunctions, arrested the money in the hands of the chamberlain, and so long as they are operative, that officer should not be compelled to incur the peril of determining for himself to whom payment should be made. As remarked by the court below: While the orders stand, there remains a question of fact as to the right of these creditors to reach the fund, and they are entitled to be heard, but they are not now before the court.” In People ex rel. Meyer v. Gould (supra) the creditor was before the court, and it was admitted that the money belonged to the third party who had deposited it. But it may be said that the injunctions were not operative in this case, because the orders for the examination of the chamberlain in supplementary proceedings were spent. Upon an examination of those orders, as they are printed in the record, we find that as to both of them the examinations were adjourned to a time thereafter to be fixed, and it may be urged that that was tantamount to an abandonment of the proceedings. Whatever difference of opinion there may have been at one time respecting the effect of such an indefinite adjournment of the proceeding, it is now provided by section 2454 of the Code of Civil Procedure, which relates to proceedings of this character, that the discontinuance must be made by order of a judge. The proceeding does not fall of its own weight for neglect to prosecute it. (Riddle & Bullard Supp. Proc. [3d ed.] 172 et seq. ; Bradn. Pr. Supp. Proc. [2d ed.] 119.)

These injunction orders are still effective and the chamberlain should not be required to pay over this money until the restraint now imposed upon him is removed.

The order appealed from should be affirmed, with costs.

Hatch and Laughlin, JL, concurred.