
    PHILLIPS against WHEELER.
    
      Supreme Court, Second Department, Second District, General Term,
    
      December, 1874.
    Execution.—Motion and Obdebs.—Place óe Tbial. —Shebiee.—Default.—Attachment.
    After judgment by default against partners, and levy made, one partner had the default opened as against himself, and prevailed, on the defense that the firm were never indebted. Held, that so far as concerned the rights of an intermediate attaching creditor, the judgment was entirely impeached, and the latter creditor had the prior right to the avails of the levy.
    The provision of subdivision 4, of section 401, of the Code of Procedure—requiring motions on notice to be made in the district in which the action is triable, or in a county adjoining that in which it is triable—can not be invoked to preclude a motion in several actions, not being triable in the same district noi in adjoining counties.
    
      In such a case the old practice is preserved by rule 97 of the supreme court.
    
    The defendant, George Lamoree, received, as sheriff of Dutchess, October 30, 1867, an execution in favor of J. Frank Phillips against Henry W. Wheeler and two others, partners, for three thousand one hundred and forty-one T258¥ dollars on a judgment recovered in the first judicial district, New York. On the next day he received a warrant of attachment in an action brought in Greene county, in the third judicial district, by Charles Cornwall against the same defendants, and thereafter an execution therein for two thousand six hundred and fifty tYo dollars. On the same day, October 31st, 1867, he levied on all the property of the said defendants which he could find in Dutchess county, which was sold, and the proceeds, amounting to the sum of one thousand seven hundred and seventy-nine ^¡- dollars, were in the hands of the sheriff at the time the order now appealed", from was made.
    December 24th, 1867, an order was made by Mr. Justice A. P. Jamps, setting aside and vacating the judgment in favor of Phillips. That order was appealed from, and June 14th, 1869, modified on appeal to open the judgment and permit defendant Wheeler, who alone applied, to answer, and stay proceedings till trial of the issue thereon. The referee, on the trial of that issue, found that the defendants were not indebted to the plaintiff for any of the matters or things demanded.
    June 22d, 1869, Lamoree commenced an action of interpleader in the second judicial district, Dutchess county, against Phillips, Cornwall, and others, in which Phillips answered. A defendant, Smith, demurred. The demurrer was overruled by Mr. Justice Barnard, and judgment given for Lamoree on the demurrer was reversed by the general term.
    October 12th, 1872, on a motion in behalf of Lamoree, an order was granted at special term, in the second judicial district, Dutchess county, by Mr. Justice Barnard, directing that the above mentioned moneys received by Lamoree as sheriff be by him paid to the assignees of Cornwall’s judgment. From this order an appeal to the special term is now taken.
    
      B. J. Sherman for the plaintiff, appellant (Phillips).
    —I. The order appealed from was erroneous, because Lamoree had commenced an action in the supreme court for the same relief sought by the motion, the issues of fact in which action were still pending and undetermined.
    Mr. Justice Barnard’s judgment in the action of interpleader having been reversed, Lamoree was not justified in again applying to him for relief on the same state of facts as he did do. Lamoree should have appealed to the court of appeals.
    II. This motion was not made in the proper district. Code of Pro., § 401, sub. 4.
    III. The Phillips judgment, and not that of Cornwall, is entitled to the money.
    The former was set aside only so as to allow the defendant Wheeler to answer, and proceedings were stayed as against his individual property only. The execution under Phillips’s judgment is now available against all other property.
    
      Anthony & Losee for George Lamoree, respondent.
    
      
       As to the rule for making one motion in several causes, see Jackson v. Sheldon, 9 Abb. Pr. 127; Holmes v. Williams, 3 Cai. 98; Pell v. Jadwin, 3 Johns. 448; Phelps v. Hall, 5 Id. 367; Parent v. Kellogg, 1 How. Pr. 70; Alcott Davison, 2 Id. 44; Cooke v. Smith, 7 Hill. 186; Dederick v. Hoysdradt, 3 Code R. 86.
    
   By the Court.

Tarden, J.

—The sheriff of Dutchess made a motion at the Dutchess special term, upon notice to all the judgment or attachment creditors in these actions, for directions by the court as to the disposition of moneys in his hands, arising from the sale of the partnership property of the judgment debtors. The plaintiff, Phillips, obtained, a judgment by default against all the defendants as partners, and filed transcript. and issued execution to the sheriff of Dutchess, pending which the defendant, Wheeler, by order of the court, had the judgment set aside as to him, and was allowed to come in and defend on the merits ; judgment was subsequently rendered at the trial in his favor, the referee finding, “that the defendants were partners ; that the sums of money alleged by the plaintiff to have been loaned to the defendants were not so loaned ; and that the defendants were not indebted to the plaintiff.” The defendant, Wheeler, being the only party defending, took judgment against the plaintiff dismissing the complaint, and for costs ; and the judgment stands unreversed. The plaintiff asks to have the money in the sheriff’s hands applied to the execution which he issued on the judgment before it was opened by the defendant Wheeler, upon the ground, that it was not opened as to the other defendants, although it was upon a claim against all the defendants as partners. The plaintiffs priority is contested by Charles Cornwall, a creditor who is next in order of time, by reason of an attachment which the sheriff of Dutchess received and levied on the partnership property. The sum of money in the sheriff’s hands is about one thousand seven hundred dollars, and as either of these claims will more than exhaust the fund, the claims of the twelve subsequent execution creditors do not need to be considered at present..

The plaintiff’s judgment stands impeached by-the decision against him on a trial of the action on its merits; the fact that the other two defendants did not seek to defend, and that on a trial demanded by the remaining partner (the defendant Wheeler) the plaintiff was defeated on the merits, shows collusion, and goes to the right to demand the money now in dispute. The judgment obtained by the attaching creditor, Cornwall, is next in order, and is now entitled to be first paid. The plaintiff, Phillips, objects that the sheriff could not waive the motion in Dutchess, for the reason, that the plaintiff’s judgment was recovered in New York, and the Cornwall judgment in Greene. The Code, sec. 401, subd. 4, provides, “ that motions upon notice must be made within the district in which the action is triable, orina county adjoining that in which it is triable,” “ and no motion on notice can be made in the first judicial district, in an action triable elsewhere.”

A literal construction of this language would leave the sheriff without any place to make the motion. It is conceded on the part of the sheriff, that neither of the actions is in the second judicial district, nor in a, county adjoining the county of Dutchess; but the sheriff could not be heard if he did not bring all the claimants to the fund before the court. '

The plaintiff, Cornwall, whose action was triable in Greene, could object to any motion in the first district, and the plaintiff, Phillips, whose action was triable in New York, could object as well to a motion in Greene as he did to a motion in Dutchess. If the construction claimed by the plaintiff Phillips, for this section, is held to govern this proceeding, such a rule would leave the public officer without remedy, because of the conflicting parties who claim the fund in bank having their judgments in several counties, not being the same judicial district, and not being adjoining counties. This provision of the code can not be held applicable. The proceeding is one not embraced in that section, bat ru'le 97, applying to cases not regulated by statute, must apply. In other words, when one motion is necessarily made and entitled in several actions pending in different counties and judicial districts, the practice under section 401 of the Code does not apply from the very circumstances of the case.

On the question of jurisdiction, and on the merits, the order of the special term should be affirmed, with ■costs. 
      
       Present—Talcott and Tappeít, JJ.
     