
    Thomas P. Bayer, Respondent, v. John H. Doscher, Appellant.
    Third Department,
    June 29, 1910.
    Execution — levy on chose in action — voluntary payment of money by . debtor of judgment debtor on execution against the latter—no defense to action.
    A chose in action is not subject to levy and sale on execution.
    It is no defense to an action for money due that the sheriff after the commence- ■' ment of the action levied on money in the hands of the defendant to satisfy a judgment against the plaintiff where there is no connection shown-between such money and the cause of action stated in the complaint. The sheriff could not levy on the debt of the defendant to the plaintiff, and the defendant' had no more right to voluntarily pay the sheriff than he had to pay the judgment creditor.
    Appeal by the defendant, John H. Doscher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Rensselaer on the 24th day of February, 1910, upon the decision of the court after á trial at the Ulster Special Term, sustaining a demurrer to a defense in the answer and giving judgment in favor of the plaintiff for the amount claimed in the complaint.
    The complaint for a first cause of action alleges that the plaintiff rendered services and furnished material to the defendant which were reasonably worth and for which he promised to pay eighty-five dollars and seventy-five cents. For a second cause of action it is alleged that an account was stated between the parties for fifty-five dollars and seventy-fiye cents, besides interest, which sum defendant promised and agreed to pay. Judgment is demanded for this latter sum of fifty-five dollars and seventy-five cents.
    The defendant in his answer admits that there is due the plaintiff fifty-five dollars. He then alleges as a defense: “ That on or about the 26th day of November, 1909, a transcript of the judgment was filed with the Olerk of the County of New York, in an action, Winthrop P. Soule, plaintiff, against Thomas P. Bayer, defendant, for the sum of Eighty-five and 85/100 ($85.85) Dollars, in favor of the said Winthrop P. Soule and against the said Thomas P. ■ Bayer, which judgment was recovered in ■ the City Court of Troy, and the judgment roll filed in the office of the Clerk thereof, and that said judgment debtor, Thomas P. Bayer, against whom said transcript was filed and said judgment recovered is the plaintiff in this action. That thereafter an execution was duly issued to the Sheriff of the County of New York, out of the Supreme Court of the State of New York, County of New York, upon said judgment and the Sheriff of the County of New York, on the 2nd day of December, 1909, duly levied under said execution upon the sum of Fifty-five ($55) Dollars cash, in the possession of the defendant herein, the property of the aforesaid Thomas P. Bayer, plaintiff. That thereupon any and all sums due from this defendant to the plaintiff were discharged and satisfied.” The facts thus alleged in the answer occurred after the commencement of this action.
    Plaintiff demurred to the foregoing defense on the ground that it was insufficient in law on the face thereof. The court sustained •the demurrer and rendered a judgment in favor of the plaintiff for the sum of fifty-five dollars, the amount admitted to be due by the defendant in his answer.
    
      James A. Foley, Benjamin F. Schreiber and Patrick J. Walsh, for the appellant.
    
      Warren McConihe, for the respondent.
   CooHRANE, J. :

.The answer is insufficient as a defense to the causes-of action alleged in the complaint because there is no connection shown between the money alleged to have" been levied upon as the., property of the plaintiff and such causes, of action. That money ipay have represented any other transaction between the parties. Money belonging to-a judgment debtor may be levied upon under an execution. (Code Civ. Prqc. §• 1410.) But if the defendant had .in his possession money belonging to the plaintiff which was. thus levied upon that could not affect the cause' of action against defendant for services rendered'and material furnished or bn an. account stated. He still remained indebted on those causes of action;

Assuming, however,-that the defendant intended to allege that he paid to' the. sheriff oh the execution against' plaintiff the amount which.defendant admits having owed the plaintiff on the causes.of action alleged in the complaint such payment was voluntary. It is ■well settled that a chose in action is hot subject to the lien of an execution and is incapable of levy or seizure by the sheriff. (McNeeley v. Welz, 166 N. Y. 124, 128; Clark v. Warren, 7 Lans. 180; Clarke v. Goodridge, 41 N. Y. 210.; Duffy v. Dawson, 2 Misc. Rep. 403.) Defendant simply owed á debt to the plaintiff and could not extinguish that debt by voluntarily paying some other debt which plaintiff owed: The sheriff could not levy on the debt of defendant to plaintiff and defendant had'no more right to voluntarily pay the sheriff- than he had to pay the judgment creditor directly.

The defendant cites the case of Genovese v. Matelli. (8 Misc. Rep. 493) which, supports his contention. That case stands by itself in holding that' a debtor may discharge his.indebtedness by paying •an execution against his. creditor and is opposed to the principle of the cases above mentioned,, and many others which might be mentioned.

' - The court was, therefore, right in sustaining the demurrer and the judgment should be affirmed, with costs,

. Judgment unanimously affirmed, with costs, - .  