Wilmerdings v. Fowler

45 How. Pr. 142

• Court: New York Supreme Court
• Decided: March 15, 1873
• Status: Published

Opinion

By the Court, Gilbert, J.

It is testified by the attorney of Messrs. Wilmerdings & Mount, and not denied by Mr. Fowler, that when the latter obtained the moneys in controversy he knew the fact that said moneys were claimed by Mr. Rice, and that an action, brought by him, against Wilmer-dings & Mount to recover the same was then pending. There is nothing in the papers to show that Mr. Fowler had any reason to question the title of Mr. Rice to the moneys. On the contrary, it is a fact of some significance that it is not made to appear that Lowenstein, the judgment debtor, on his examination stated that the moneys belong to him. That examination is not before us, and all that appears respecting the contents of it is set forth in Mr. Fowler’s affidavit, dated October 23d, 1871. The statement there is, that on the examination of the judgment debtor he stated and swore that the relators (Messrs. W. & M.) had owed him the money in question. The title of Mr. Rice has been judicially established.

Mr. Fowler obtained the moneys upon an ex parte deposition of Thomas A. Wilmerding that there was a balance of $963.36 remaining with his firm to the credit of the judgment debtor. Mr. Wilmerding was not interrogated respecting the claim of Bice, or whether such balance was, in point of fact-, the property of the judgment debtor ,• nor did Mr. Fowler state to the justice, who made the order directing Wilmerding & Mount to pay the money to him, the fact that the judgment debtor had assigned said moneys to Bice, or anything concerning Bice’s claim thereto. Nothing whatever is shown to justify or excuse such a ¿uyopression of material facts. As the case is now presented, that suppression can be regarded in no other aspect than that of an imposition on the justice who made the order. In such a case there can be no question- of the power and duty of the court, by appropriate means, to compel a restitution of the moneys to the parties thus illegally deprived of them (Slater agt. Phoenix Bank, 33 N. Y. R., 25, and cases cited). And where the person proceeded against is an attorney, the remedy by attachment is the proper one. ¡No embarrassment arises from the statement of'Mr. Fowler that he has paid over the moneys to the plaintiffs. ¡Nor is it necessary to pass upon the legal effect of such a fact, if it existed, for Mr. Fowler is one of. the plaintiffs, and the statement would be literally true if he retained the moneys and charged himself therewith in account with his firm. It appears one Bamberger is the person entitled to receive the moneys from Fowler, and there is no pretense that, they have been paid to him.

The appeal from the order made by Mr. justice Ingbaham was waived by the motion under review.

Upon the whole case, therefore, we think the order appealed from should be affirmed with costs.

*

The defendant appealed to the court of appeals, and on the 15th of May, 1878, the order was affirmed with costs, the court holding that the order of judge Babnabd, under which the money was paid, having been procured by fraud, was a nullify, and that an attachment was the proper remedy and applicable in such cases to any person guilty of obtaining money by fi'aud.