Opinion
February, 1901.
Van Schaick, Norton Quinby, for appellant.
John J. Buckley, for respondent.
The defendant claimed that the payments, made during the pendency of the motion for a receiver in the action in the Supreme Court, should be applied in discharge of the claim upon which the judgment herein was recovered, and, as very much more than enough to satisfy the amount of that judgment with interest and costs has been paid, that the same should be satisfied of record, and the proceedings supplementary to execution had thereon dismissed.
In opposing the motion, the attorney for plaintiff, who has had charge of the several matters between the plaintiff and the defendant, states positively, in his affidavit, that the several payments made by the defendant were so made upon the express agreement that the same be first applied upon the extinguishment of claims other than the claims involved in the sequestration suit ( i.e., the claim upon which the judgment herein was recovered was involved in the sequestration suit); that the moneys received have been so applied, and that the whole of the judgment herein remains unpaid. It thus appears that a very serious conflict exists between the parties, upon the application of the moneys paid, and the question of the payment of the judgment herein remains in doubt and uncertainty.
Under like circumstances, it has been decided that the party seeking the relief should be left to his action therefor, provided relief can be had in that form (Hill v. Hermans, 59 N.Y. 396; Van Etten v. Hasbrouck, 4 N.Y. St. Repr. 803); and, after a very careful examination of the record on this appeal, we are of opinion that the Special Term should have remitted the defendant to his action.
Order appealed from reversed and motion denied, with ten dollars costs and disbursements. Order for examination of defendant in proceedings supplementary to execution reinstated, and defendant directed to appear thereunder upon a day to be named in the order entered thereon. Leave is granted to the defendant to apply, if so advised, for a stay of proceedings supplementary to execution pending the determination of any action he may institute to have the judgment adjudged paid.
Present: FITZSIMONS, Ch. J., CONLAN and O'DWYER, JJ.
Order reversed and motion denied, with ten dollars costs. Order for examination of defendant reinstated, and defendant directed to appear thereunder upon a day to be named. Leave granted defendant to apply for a stay of proceedings pending the determination of any action he may institute to have judgment adjudged paid.