
    William H. Merritt v. Martin Thompson. 
    
    Where a fund in litigation has been brought into court, and the defendant admits that a part of the fund is due to the plaintiff, disputing his claim to the residue; the court may order the part, so admitted to be due, to be paid over to the plaintiff, without prejudice to his further claims.
    The circumstance, that the defendant, both before and since the action was brought, has offered to pay to the plaintiff the sum so admitted to be due, provided it should be accepted in full satisfaction, or that he has offered to allow jugdment to be taken for that sum, is no reason for refusing such an order.
    
      
      It seems, that where a defendant who is insolvent or unable to make present payment, offers to suffer judgment to be taken pursuant to § 385 of the Code, or makes the like offer in his answer; the court will be careful not to substitute an order that he pay the money, under § 244, to be enforced by an attachment for contempt and taking of his body, in the place of an ordinary judgment and execution.
    It was not the intention of the legislature, in authorizing the court to grant an order requiring a defendant who admits a sum to be due, to pay it, to introduce imprisonment for debt, if the debtor is not able to pay.
    But where the money is in court, and where the defendant admits the sum due and offers to pay it, the order should be granted.
    
      It seems, that on an appeal from such an order, the court at general term will not review the discretion, exercised at special term, in respect to the terms or conditions upon which the order has been granted, where no right of the appellant and no rule of law are violated.
    This action, which was brought to recover $22,117, now came before the court at general term, on appeal by the defendant, from an order granted at a special term, directing the payment to the plaintiff of a sum admitted by the defendant to be due and payable. The order required the payment to be made out of moneys which had been brought into court and deposited in the New York Life Insurance and Trust Company. The case is stated in the report of the decision of an appeal from an order of injunction granted in the cause (see ante, p. 283), and the additional facts relating particularly to the present appeal, are given in the opinion of the court delivered by Wood-ruff, J., which follows.
    The following is the opinion of Ingraham, First J., granting the application now under consideration, the present appeal being prosecuted to review his decision:
    “The defendant, by his answer, admits that after deducting all his alleged counter claims there remains a balance due to the plaintiff, and that such balance amounts to $2,675 34. To this part of the claim no defence is set up, and the plaintiff now moves that the defendant be ordered to pay over such moneys, and that so much of the money now deposited in court be paid over therefor.
    “ For the reasons why in such cases the motion should be granted, I refer to the opinion in the case of Myers v. Trimble, 
       decided this day at special term.
    “ It is objected by the defendant, in addition to other objections therein referred to, that in this case a difference of interest will accrue in favor of the defendant on his counter claim in consequence of the money being deposited in the Trust Company under an order of the court at a low rate of interest. The objection is unavailing. The money in the Trust Company was not placed there at the request of the plaintiff, but of the defendants, and if the interest is small, the plaintiff only receives at that rate on this order. The defendant has no right to object to what was done at his request, and if it were otherwise, the defendant has security in the bond given on the injunction sufficient to protect him against loss on the counter claim. The motion must be granted.”
    
      Francis H. Dykers and Theodore Sedgwick, for the defendant, made the following points:
    I. The article of the Code, § 244, gives the court authority to make an order of this kind where the admission is positive, and the whole matter rests in the discretion of the court.
    II. The admission here is expressly qualified, and is not such an admission as the Code contemplates.
    III. The defendant in this case has made a tender under § 385 of the Code, giving the plaintiff leave to enter judgment for the same amount sought by this summary process. Where such tender is made the relief sought by this motion should not be granted.
    IY. The 244th section of the Code, under which the motion is made, is inconsistent with the whole spirit of our legislation in regard to imprisonment for debt. It gives the court in any case where a sum is admitted to be due power in its discretion to incarcerate the defendant in case he disobeys the mandate to pay, whether he is wholly unable or not. (Dolan v. Petty, 4 Sand. S. C. R. 673.)
    V; In this case, on the facts, it is submitted that the discretionary powers of the court should not be exercised. One of the plaintiff’s sureties on the arrest and injunction is insolvent, the other is in bad credit, and the plaintiff himself is not a householder. It is certainly not too much to ask, as a condition of this order being granted, that the plaintiff be required to put in fresh security, and that such security justify.
    
      Charles A. Rapallo and Horace F. Clark, for the plaintiff, made the following points:
    I. The answer of the defendant clearly admits that the balance of $2,675 34 was due from the defendant to the plaintiff at the time of the commencement of the action.
    II. The schedule annexed to the answer also shows that the said sum of $2,675 34 was due, over and above all the deductions and set offs claimed by the defendant.
    IU. The condition attached by the defendant of the answer to his offer to pay the said sum of $2,675 34, does not detract from the force of his admission, or impair its effect in any manner.
    IY. This sum of $2,675 34, with other moneys claimed by the plaintiff, has been paid into court, on the application of the • defendant. He has placed it under the control of the court, and there is no difficulty in enforcing any order which they may make for its payment.
    Y. The defendant has no right to claim that this fund be retained as security for his costs, should he succeed in the action, or for the damages which he may sustain by the injunction. The law provides for his security, in these respects, by the undertakings on the part of the plaintiff, and there is no principle which entitles him to hold, as additional security, funds which are admitted to belong to- the plaintiff. The circumstance that the funds in question were received by the defendant in a fiduciary capacity, and are, in fact, the property of the plaintiff, should be taken into consideration by the court, should they attach any weight to the objections urged by the defendant.
    VI. The defendant was, on the statements in the answer, bound to pay the sum of $2,675 34 at the time of the commencement of the action, and nothing has since transpired to relieve him from that obligation. If the fact that the plaintiff claims more than the sum admitted were an excuse for not paying the sum admitted to be due, no order for payment could be made in any case under § 244.
    VII. The order appealed from should be affirmed with costs.
    
      
      
         See Myers v. Trimble, post, p. 607; and Quintard v. Secor, post, p. 614
    
    
      
      
         Afterwards reviewed at general term. The case is fully reported post, p. 601.—Rep.
    
   By the Court. Woodruff, J.

The complaint herein is filed to recover from the defendant a large sum of money, alleged to have come to the defendant’s hands as agent for the plaintiff. An injunction having been granted to restrain the disposition of the specific fund in the defendant’s hands, or in the hands of his banker, the defendant himself moved for and obtained an order, in pursuance of which the money held under injunction was brought into court and deposited in the New York Life and Trust Company, to abide the further order of the court. Upon the coming in of the answer, the plaintiff applied at special term, before the first judge, and obtained an order upon motion, directing the payment to the plaintiff of the sum of $2,675 34, out of the moneys so brought into court. This motion was founded on the provisions of § 244, subd. 5, of the Code of Procedure, and from the order so made the defendant appeals.

I concur with the first judge in the propriety of making the order upon the plain and unqualified admissions in the defendant’s answer. The plaintiff claims the proceeds of a sale of his ship made in China. The defendant sets up a sale of the ship at San Francisco for a less sum, admits that the plaintiff is entitled to the proceeds of that sale, and denies that the plaintiff has any interest in the sale in China, which he avers was made for the account of the San Francisco purchaser, and the defendant annexes to his answer a statement of his account with the plaintiff, crediting to him the proceeds of the sale at San Francisco, and charging him with all the remittances and all his claims for commissions and for matters of set off, and by his sworn answer declares it to be a “ full, accurate, and true account,” etc., and that account in very terms states that the “balance dué W. H. Merritt (theplaintiff), is $2,675 34;” and again, in his answer, he denies that any greater sum than $2,675 34 is due to the plaintiff.

Mow, however much the parties differ in relation to the other matters stated in the complaint and answer respectively, it is not disputed in any form that at least so much as $2,675 34 of the moneys now in court do belong to the plaintiff. To this extent the defendant’s answer, read with the schedule annexed, is unqualified.

This appears to me to be the precise case contemplated by the provisions of the Code above referred to, viz. “ When the answer of the defendant admits part of the plaintiff’s claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy.”

But the counsel for the appellant insists that the defendant has offered and tendered to pay this sum heretofore, and that, therefore, the court ought not to make the order for the payment, but require the plaintiff to accept the offer as in full for his claim, if he takes the money at all. It appears to me that nothing could be more inequitable. It is, in. effect, saying to him, “ Abandon your claim, take just what the defendant admits to be due, admit all that the defendant alleges as a defence, and be content; if you will not do this, you shall not take the money which is your own, to which the defendant admits he has no title, and which is in court awaiting the order which may be made, and which, whatever may be the result of the matters in dispute, must be decreed to belong to you.”

Where a defendant is insolvent, and comes in either by the offer to allow judgment to be taken against him for a sum named, under § 385 of the Code, or by his answer makes such an offer, the court should and would be very careful not to substitute process of attachment for contempt in the place of a judgment and ordinary execution, since the former might involve imprisonment of the body, in many cases, where such imprisonment for a mere debt was probably not contemplated by the legislature. But where, as in the present case, the defendant not only admits this part of the plaintiff’s claim to be just, but actually offers to pay it if the plaintiff will abandon his other claims, and especially where the money is itself under the control of the court, no such reason exists, and there seems to be no reason for withholding the money from the plaintiff. In giving power to the court, where a defendant admits a sum to be due, to make a peremptory order that the defendant pay it, and enforce the order by attachment, the legislature did not intend to introduce imprisonment for debt in cases in which it is not allowed upon other grounds, except where the refusal to pay was contumacious, and not the result of inability. If a defendant has the money, and only refuses because he is unwilling, it is in all respects proper that he should be compelled to pay, and be imprisoned until he does so.

The counsel for the appellant further insists that the order should at all events have only been granted upon terms. That it appears by the affidavits read on the motion that one of the sureties to the undertakings given on granting the order of arrest, and the injunction herein, has become insolvent and the plaintiff ought to have been required to give a further undertaking. It appears to me that such a requirement would not have been unreasonable, but I do not think the order should be reversed upon that ground.

Indeed I doubt very much the propriety of reviewing upon appeal, the discretion exercised by the judge at special term. It is true that an order granting or refusing a provisional remedy may be appealed from, and hence this appeal is properly brought—and under the same provision of the Code an appeal may be brought from an order directing an arrest. But on an appeal in the latter case, the court would not, I think, review the discretion exercised by the judge in determining whether such order shall issue upon an undertaking “ with sureties,” or an undertaking without sureties,” either being proper as the judge granting the order may direct. The same remarks are applicable to an order granting an injunction either on an undertaking by the plaintiff with sureties or without sureties as the court or judge may direct. The question whether or not in such case an injunction was proper, is undoubtedly the subject of review, but I very much doubt the propriety of considering those matters of discretion which relate to the terms or conditions imposed. So in regard to the granting or refusing of costs, or requiring a party to give time or other indulgence as a condition of granting an order, it seems to me that the action of the special term should be regarded as final when no right of the party nor any rule of law is violated.

Again, in the present case, the court on granting the injunction might have dispensed with sureties altogether, or might have been satisfied with the undertaking on the part of the plaintiff with one surety. The defendant has now the liability of the plaintiff himself, and of one solvent surety, and this will ordinarily prove ample to protect the defendant.

Besides, the only damages which the defendant is liable to sustain by the litigation, against which he could ask indemnity, is a possible loss of interest on the fund in court at the rate of two per cent.'per annum, and his costs of suit. There is no pretence that the plaintiff is not solvent and fully able to meet any liability to indemnify the defendant in these particulars if the latter should recover judgment. There is, moreover, at least one solvent surety to the plaintiff’s undertaking.

I am not therefore disposed to interfere with the discretion exercised at special term in not imposing upon the plaintiff the duty of giving further security as a condition of granting the order, and on the merits I think the order was eminently just and proper. It should therefore be affirmed.

Order affirmed. 
      
       By the amendatory act, passed April 17, 1857, the words “judgment or,” are inserted before “ provisional remedy.”—Rep.
     