Baker v. . Kenworthy

This order should be affirmed for two reasons. First, the money paid into the hands of the sheriff on the execution in favor of Brooks, did not become the property of Brooks until it had been paid over to him. Until that was done, the sheriff could not levy upon it by virtue of the execution against Brooks then in his hands. (Carroll v. Cone, 40 Barb., 220.) Same case affirmed in this court. Argued January term, 1869, and decided at the March term. (Dubois v. Dubois, 6 Cowen, 494; Muscott v.Woodworth, 14 How., 477. Reversing the same case in 13 Howard, 377.) Brooks, having assigned the cause of action or judgment to Baker, his attorney, he had no interest in the money, in the hands of the sheriff. He had no right of action against the sheriff for the money. Baker, the assignee, had a right of action against the sheriff for the money. He not having given notice of the assignment to the sheriff does not help the sheriff in the least, inasmuch as he did not pay the money to the plaintiff in the execution against Brooks under an order of any court. (Robinson v. Weeks, 6 How., 161; Richardson v. Ainsworth, 20 How., 521; Buckwilt v. Union Bank of N.Y., 9 N.Y.R., 211;Muer v. Skink, and another, 3 Hill, 228.) If the sheriff had paid the money to Brooks, or had paid it *Page 217 to the plaintiff in the execution against Brooks, under an order of a court or judge in a proceeding under section 294 of the Code, in the absence of any notice of the assignment, or of any lien by Baker, he would have been protected. (Gibson v.Haggerty, 37 N.Y.R., 555.) The sheriff did not assume to act under section 293 of the Code, and did not proceed according to the provisions of that section; therefore it is unnecessary to consider whether he might have been protected in doing it or not. I think the order of the Special and General Term should be affirmed with ten dollars costs.