
    James D. Heatherington, App’lt, v. Claus Martens. Margaret Fitzpatrick, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Supplementary proceedings.
    Where, upon the vacation of an order in supplementary proceedings for insufficiency of the papers on which it was based, it was ordered that the amount of the creditor’s judgment should be retained by the sheriff out of the proceeds of a-judgment in favor of the judgment debtor which had been assigned, until the further order of the court, an order directing payment to the assignee of the money so held by the sheriff, will not be disturbed, where such assignee has waited more than seven weeks for the judgment creditor to proceed with the examination. -
    
      Charles L. Hubbell, for app’lt; William A. Shortt, for resp’t.
   Dykman, J.

This is an appeal from an order made by the county court of Richmond county. The facts upon which the order was based are these: Martens recovered a judgment against one Faliy on the 19th- day of December, 1892, for $418.42, and an execution was issued thereon to the sheriff, who made a levy under it That judgment was assigned by Martens to Margaret Fitzpatrick by an instrument made January 3j 1893, and filed and recorded in the office of the clerk of Richmond county, January 21, 1893. That assignment was made for a valuable consideration, and made in good faith. Thereafter, on January 23d, Heatherington, the appellant, recovered a judgment against Martens for $86.68 in the court of a justice of the peace, and caused execution to be issued thereon to the sheriff. Before the return of the execution the appellant procured an order for the examination of Martens in proceedings supplementary to execution, on the allegation that he had property which he unjustly withheld; and Fahy, who was summoned as a witness, was enjoined from the payment of the judgment held by Miss Fitzpatrick. Martens, not being personally served, failed to attend the examination, and the appellant procured an order requiring him to show cause why he should not be punished for contempt, which was returnable on the 14th day of February. Mertens obtained an order to show cause, returnable the same day, why the order for his examination should not be vacated, upon the ground that the papers upon which it was obtained were insufficient to give jurisdiction. On the 14th of February these motions were heard by the county court, and decided in favor of Martens, and the order for his examination was vacated, and the injunction upon Fahy was dissolved. In order, however, to give the appellant an opportunity to examine Martens, it was ordered by consent that the amount due on the Martens judgment against Fahy should be turned over to the sheriff, and so much as was claimed by Heatherington upon his judgment against Martens—$88.68— should be held by that officer until the further order of the court. Thereupon Fahy paid the full amount of the judgment against him, the sheriff giving him a receipt for $88.68; and the balance was turned over to Miss Fitzpatrick, and, having thus paid the judgment, Fahy demanded a receipt and satisfaction thereof. After waiting over seven weeks for the appellant to proceed with the examination of Martens, he offered to submit himself at any time for that purpose. Miss Fitzpatrick, on March 30th, gave notice as provided in the order of February 14th of motion for an order directing the sheriff to pay to her the amount collected by him, and held under the order of February 14th. On that notice, and the affidavit of herself, Martens, and Shortt, and on the order of February 14th and the -sheriff’s receipt, the county court, after hearing both sides, made an order requiring the payment by the sheriff of the sum of $88.68, remaining in his hands, to Miss Fitzpatrick. Hone of the facts were controverted.

This statement of facts is abundantly sufficient to show the validity of the order. The sum in dispute was collected on the judgment owned and held by Miss Fitzpatrick, and her title thereto had been in no way impeached. The sheriff, by the order of February 14th, was made a stakeholder of that sum of money until Heatherington should have an opportunity to examine Martens, and investigate the transaction respecting the assignment. There was, therefore, no question for the court whatever, and it properly decided that the funds should be paid to the respondent. The money was collected by the sheriff on the Martens judgment, which had been fairly assigned to Miss Fitzpatrick. The order should therefore be affirmed, with $10 costs and disbursements.

All concur.  