Guggenheimer v. Stevens

McAdam, C. J. Surplus moneys arising from the sale of real estate are, for the purpose of determining the priority of the liens thereon, regarded as the land from which the fund emanated. Such liens are transferred from the land to the surplus, and the moneys must be applied to the discharge of such liens according to their priority. Averill v. Loucks, 6 Barb. 470; Matthews v. Duryee, 45 Barb. 69, 17 Abb. Pr. 256; Blydenburgh v. Northrop, 13 How. Pr. 289. So considered, the judgment recovered by the plaintiff, being prior in time, is prior in right, notwithstanding the order appointing the receiver. Bank v. Risley, 19 N. Y. 369. If both judgments are to be treated as if they had ceased to be liens, more than 10 years having elapsed since their recovery, (Floyd v. Clark, 2 Law Bull. 36,) the result is the same, as the extension of the receivership to the judgment recovered by the plaintiff made the title of the receiver relate back to the time the pain tiff’s supplemental order was served, (Code, § 2469, subd. 1.) The evident object of this provision was to preserve the rights and liens of the different judgment creditors according to their respective priority, in conformity to the rule that different proceedings against the same debtor, or in pursuit of the same property, shall take precedence according to the respective dates of their commencement. The fund in the receiver’s hands is not, however, to be deemed the property of the party at whose instance he was appointed, but it is in custodia legis for those who shall establish a right to it according to the respective priorities. Banks v. Potter, 21 How. Pr. 474, and eases cited. The rights and priorities of the respective parties having been preserved intact, it follows that, as the service of the order in supplementary proceedings, as well as the judgment recovered by the plaintiff, were first in point of time, the moneys'in the hands of the receiver must be applied to the payment thereof as of right.