Wendt v. McCarrier

Appellate Division of the Supreme Court of New York

Wendt v. McCarrier

176 A.D. 695, 163 N.Y.S. 767, 1917 N.Y. App. Div. LEXIS 5202

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1917

StatusPublished

This text of 176 A.D. 695 (Wendt v. McCarrier) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wendt v. McCarrier, 176 A.D. 695, 163 N.Y.S. 767, 1917 N.Y. App. Div. LEXIS 5202 (N.Y. Ct. App. 1917).

Pincite

Opinion

Davis, J.:

On February 2, 1916, an execution was issued to the sheriff of New York county upon plaintiff’s judgment for $548.64 against the defendants. Thereafter keepers were installed as custodians of the property. On February 29, 1916, the execution was returned with the indorsement, “No personal or real property,” it having transpired that the furniture in question was incumbered by a chattel mortgage.

On February 24, 1916, a son of the defendant Ida McCarrier paid the deputy sheriff the sum of ninety-nine dollars and took from him the following receipt:

“Sheriff’s Office County of New York,

51 Chambers Street. New York, Feb. 24, 1916.

“Alfred E. Smith,

“ Sheriff.

“Walter T. Fitzsimmons,

“ Deputy Sheriff.

“Harry P. Wendt, Plaintiff,

“against

“John T. McCarrier and Ida McCarrier, Defendants.

“ Received from Ida McCarrier for Keeper Fees in above matter Ninety-nine Dollars 00/100 on condition of approval of Pltf’s attorney.

“Deputy.”

On May 15, 1916, the son who had paid the money to the sheriff made affidavit that the payment “was simply a gratuitous payment on behalf of his mother, to compensate the men whom the sheriff had placed hi their house as keepers to protect the property * * * and was not in any wise to he [697]*697credited to the payment of any judgment in the above entitled action.” On the other hand, the defendant Ida McCarrier testified in supplementary proceedings that this money was paid for her on account of the judgment out of money received by her from a Mrs. Sinnott.

If the money was paid as a gratuity, the deputy had no legal right to receive it. If it was paid on account of the judgment,, it must be so applied. The credible evidence indicates that the payment was made by the son for the mother on account of the judgment, and it should be so applied.

The order denying the motion for an order directing the sheriff to pay over the ninety-nine dollars, less his proper fees and charges, on account of the. judgment herein, is reversed with ten dollars costs and disbursements, and the motion granted* with ten dollars costs.

Clarke, P. J., Soott, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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Davis, J.:

On February 2, 1916, an execution was issued to the sheriff of New York county upon plaintiff’s judgment for $548.64 against the defendants. Thereafter keepers were installed as custodians of the property. On February 29, 1916, the execution was returned with the indorsement, “No personal or real property,” it having transpired that the furniture in question was incumbered by a chattel mortgage.

On February 24, 1916, a son of the defendant Ida McCarrier paid the deputy sheriff the sum of ninety-nine dollars and took from him the following receipt:

“Sheriff’s Office County of New York,

51 Chambers Street. New York, Feb. 24, 1916.

“Alfred E. Smith,

“ Sheriff.

“Walter T. Fitzsimmons,

“ Deputy Sheriff.

“Harry P. Wendt, Plaintiff,

“against

“John T. McCarrier and Ida McCarrier, Defendants.

“ Received from Ida McCarrier for Keeper Fees in above matter Ninety-nine Dollars 00/100 on condition of approval of Pltf’s attorney.

“Deputy.”

On May 15, 1916, the son who had paid the money to the sheriff made affidavit that the payment “was simply a gratuitous payment on behalf of his mother, to compensate the men whom the sheriff had placed hi their house as keepers to protect the property * * * and was not in any wise to he [697]*697credited to the payment of any judgment in the above entitled action.” On the other hand, the defendant Ida McCarrier testified in supplementary proceedings that this money was paid for her on account of the judgment out of money received by her from a Mrs. Sinnott.

If the money was paid as a gratuity, the deputy had no legal right to receive it. If it was paid on account of the judgment,, it must be so applied. The credible evidence indicates that the payment was made by the son for the mother on account of the judgment, and it should be so applied.

The order denying the motion for an order directing the sheriff to pay over the ninety-nine dollars, less his proper fees and charges, on account of the. judgment herein, is reversed with ten dollars costs and disbursements, and the motion granted* with ten dollars costs.

Clarke, P. J., Soott, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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Bluebook (online)

176 A.D. 695, 163 N.Y.S. 767, 1917 N.Y. App. Div. LEXIS 5202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wendt-v-mccarrier-nyappdiv-1917.