Ghersin v. Thuor , 107 N.Y.S. 195 ( 1907 )

Leventritt, J.

On May 17, 1907, the defendant, the judgment debtor, sold certain premises to one Samuel Abeloff, and pursuant to the agreement under which the transaction was finally consummated the sum of $20,000 was paid over to William M. Seabury and William H. Chorosh as trustees, upon the understanding that of this amount $2,000 was to remain in their hands for a period of ninety days from May seventeenth, during which time the defendant agreed to pay any liens which might be filed against the premises. It was further provided that, in the event the defendant failed to satisfy these liens, the trustees were to hold the $2,000 until such time as the liens should be discharged of record. Of the sum deposited $1,600 remains in the hands of the trustees.

The plaintiffs in these actions recovered judgments against the defendant which, by strange coincidence, aggregate $1,600. In proceedings supplementary to execution, one of the trustees, Seabury, was examined under third party orders. Upon this testimony, showing the deposit of the $20,000, the payment thereout of $18,400 and a balance on hand of $1,600, orders were issued requiring the trustees to show cause why the'several judgments of these plaintiffs should not be satisfied out of the funds in their hands.

Upon the return day William H. Ohorosh appeared and filed an opposing affidavit setting forth the agreement between the defendant and Abeloff; that the ninety days had not expired and that liens aggregating $3,000 had been filed against the premises, had not been discharged and were then of record. Notwithstanding these facts the court made orders requiring the trustees to satisfy the several judgments. From these orders William H. Ohorosh appeals.

Two questions are presented: 1, Has the appellant, as trustee, the right to appeal; and, 2, Is there merit in the appeal ? We answer both in the affirmative.

The respondent argues that Ohorosh is not, ‘within the meaning of section 1294 of the Code, “ a party aggrieved.” We subscribe to a contrary view. The title to the fund in question is in the trustees and they are directly responsible, in their management and disposition of the moneys, to the beneficiaries under the trust, one of whom is Abeloff, who was not a party to these proceedings. For an unauthorized or illegal disbursement the appellant would be answerable to Abeloff, for whose sole protection the trust fund was created. The orders requiring the appellant to pay the several judgments were absolute and mandatory. If they were unauthorized, and Ohorosh obeyed them, he would not be relieved from Abel off’s claim to the full protection of the trust fund. It cannot be said, therefore, that the appellant was not aggrieved by the orders or that they did not affect his property rights. Locke v. Mabbett, 2 Keyes, 457.

The answer to the second question is found in the statement of the legal principle applicable. Where a substantial dispute has arisen with respect to the ownership of á fund in the hands of a third party, its payment will not he directed — the judgment creditor being remitted to an action through the medium of a receiver. Here, not only is there a substantial dispute, hut there is absolutely no proof that the judgment creditor has any present claim upon or right to the trust fund or any part of it.

The orders appealed from are reversed, with costs and disbursements, and the motions denied, with ten dollars costs in one proceeding.

Gildebsleeve and Eblawgeb, JJ., concur.

Orders reversed, with costs and disbursements, and motions denied, with ten dollars costs in one proceeding.