Clark v. Gallagher , 21 N.Y. St. Rep. 314 ( 1888 )

Dykman, J.

The plaintiff in this action recovered a judgment against the defendants on the 21st day of June, 1888, for $686.21, and the judgment was filed and docketed in the Dutchess county clerk’s office. On the 24th day of July, 1888, an order was issued by Justice Barnard, directing John Callahan to appear before a referee, and be examined in relation to property in his hands belonging to the defendants, or in relation to money due and owing from him to them. That order was served July 24, 1888. July 25, 1888, Callahan was examined before the referee, and admitted an indebtedness from him to William L. Gallagher of $175. The referee made his report the same -day, and on the next day, July 26, 1888, Justice Barnard made an order directing Callahan to pay the $175 to the sheriff of Dutchess county. That order was served on Callahan the next day, July 27, 1888, and on August 3, 1888, Callahan paid the money to the sheriff. Now comes the train of facts which raises the question involved on this appeal. On the 27th of July, 1888, two mechanics’ liens were filed against Callahan as the owner of property upon which William L. Gallagher had agreed to erect a building for Callahan. The plaintiff then applied to Mr. Justice Barnard upon this state of facts for an order directing the sheriff to pay the $175 in his hands on an execution to be issued upon the judgment in this action of Clark against Gallagher. That motion was denied, and the plaintiff has appealed from the order of denial. Our conclusion is that the motion was properly denied. The whole matter ■should be held in abeyance to await the result of the trial of the lien cases against Gallagher, in which actions the whole question will be decided after a more thorough examination than could be afforded upon a mere motion. The order should be affirmed, with $10 costs and disbursements.

Pratt, J., concurs.