
    Simons v. Hearn et al.
    
    
      (City Court of New York, General Term.
    
    February 8, 1892.)
    Parties—Substitution—Collusion.
    In an action by an assignee for benefit of creditors against a debtor of the assignor it is proper to substitute an officer levying an attachment on the debt so due as defendant in place of such debtor, in the absence of collusion between the officer and the debtor.
    Appeal from special term.
    Action by Martin Simons against Arthur A. Hearn and others. From an order substituting the sheriff as defendant, plaintiff appeals.
    Argued before Van Wyck and Fitzsimons, JJ.
    
      Herman Prank, for appellant. Vanderpoel, Cuming <& Goodwin, for respondents.
   Fitzsimons, J.

The plaintiff’s assignor sold and delivered goods of the value of $75.08 to defendants on October 5,1891. On October 9th the assignment was made to plaintiff. On October 10th the sheriff attached said account on behalf of creditors of plaintiff’s assignor, one Silberstein. On November 13th this action was commenced. On November 24th an order was made substituting the sheriff as defendant herein, and discharging present defendants from liability to plaintiff or to said sheriff, and directing that the fund in dispute be paid into court. From said order this appeal is taken. The sheriff and the plaintiff herein claim the same thing, viz., the $75.08 sued for herein. The defendants are willing to pay to the person entitled thereto said fund, but cannot without risk and hazard to themselves determine which one of the claimants is entitled to it. There is no collusion between them and the sheriff. Under these circumstances the order appealéd from was properly granted. Crane v. McDonald, 118 N. Y. 654, 23 N. E. Rep. 991.

Order appealed from affirmed, with costs.  