Columbia Bank v. Ingersoll

Van Brunt, P. J. There is no doubt but that the order under which Watson, Karsch & Co. paid over the money in question to the sheriff was irregular. There seems to have been a studious suppression of the fact that a receiver of the judgment debtor had been appointed, and that the judgment debtor had therefore no power to consent to the entry of the order under which said payment was made. There is, however, another question presented, and that is as to the lien upon these moneys acquired by the attaciiment. No lien upon rents is acquired by the filing of a Us pendens against the real estate. All that could be sold under an execution issued upon a judgment in an action where real estate had been attached, would be the right, title, and interest of the judgment debtor in the real estate at the time of the filing of the lis pen-dens. It makes the lien that of a mortgage, and no more. It in no way gives right of possession; nor is there any way by which rents can be impounded by reason of such a levy. Even if the rents can be attached before becoming due, (which it is not necessary to decide here,) it is evident that they can only be reached by levying upon the lease under which such rents arise; and there is no pretense that any such levy was made here. If such lease is the subject of levy, it must be because it is an instrument for the payment of money; and therefore a levy can only be made by taking the lease into the sheriff’s actual custody. Code Civil Proc. § 649; Anthony v. Wood, 96 N. Y. 180, by which the case of Bills v. Bank, 89 N. Y. 343, is distinctly overruled. These considerations show that there is no such clear right as would entitle the attaching creditors to an order applying this money upon their executions. It is not necessary to determine the rights of the attaching creditors between themselves. The motion should be granted directing the sheriff to pay over this money to the receiver, with costs against the Columbia Bank, such receiver [55] to hold the same subject to the order of the court; and no order should^ be made disposing of the same without due notice to the so-called attaching creditors.