
    The Union Surety and Guaranty Co., Appellant, v. Leander Sire, Respondent.
    (City Court of New York, General Term,
    February, 1901.)
    Remedy — Satisfaction of judgment reversed upon a conflict of fact.
    The court will not, upon a motion, order a judgment satisfied and supplementary proceedings which have been taken thereon dismissed, where there is a serious conflict between the parties as to whether the judgment has in fact been paid.
    The party seeking relief should be left to his action, provided relief can be obtained in that form.
    Appear from an order of the Special Term, directing a satisfaction of the judgment entered in favor of the plaintiff and against the defendant, and dismissing proceedings supplementary to execution thereon. The defendant was indemnitor to the plaintiff, surety for the Greater New York Amusement Company, against which company the firm of Park & Tilford recovered a judgment, which the plaintiff surety paid subsequently. Thereupon and therefor, the plaintiff recovered against the defendant the judgment which is the basis of these supplementary proceedings. The defendant was also indemnitor to the plaintiff upon another judgment recovered against the Greater New York Amusement Company, and paid by the plaintiff as surety. Thereafter, the plaintiff took sequestration proceedings against that company, and had a receiver thereof appointed. Later, other claims against the Amusement Company were paid by the plaintiff, and for these it claimed that the defendant was liable to it as indemnitor. Pending the motion for a receiver, the defendant had made partial payments sufficient to pay the Park & Tilford claim, but insufficient to pay all the claims which the plaintiff had been compelled to pay for the Amusement Company.
    Van Schaick, Norton & Quinby, for appellant.
    John J. Buckley, for respondent.
   Per Curiam,.

The defendant claimed that the payments, made during the pendency of the motion for a receiver in the action in the Supreme Court, should be applied in discharge of the claim upon which the judgment- herein was recovered, and, as very much more than enough to satisfy the amount of that judgment with interest and costs has been paid, that the same should be satisfied of record, and the proceedings supplementary to execution had thereon dismissed.

' In opposing the motion, the attorney for plaintiff, who has had charge of the several matters between the plaintiff and the defendant, states positively, in his affidavit, that the several payments made by the defendant were so made upon the express agreement that the same be first applied upon the extinguishment of claims other than the claims involved in the sequestration suit (i. e., the claim upon which the judgment herein was recovered was involved in the sequestration suit) ; that the moneys received have been so applied, and that the whole of the judgment herein remains unpaid. It thus appears that a very serious conflict exists between the parties, upon the application of the moneys paid, and the question of the payment of the judgment herein remains in doubt and uncertainty.

Under like circumstances, it has been decided that the party seeking the relief should be left to his action therefor, provided relief can be had in that form (Hill v. Hermans, 59 N. Y. 396; Van Etten v. Hasbrouck, 4 N. Y. St. Repr. 803) ; and, after a very careful examination of the record on this appeal, we are of opinion that the Special Term should have remitted the defendant to his action.

Order appealed from reversed and motion denied, with ten dollars costs and disbursements. Order for examination of defendant in proceedings supplementary to execution reinstated, and defendant directed to appear thereunder upon a day to be named in the order entered thereon. Leave is granted to the defendant to apply, if so advised, for a stay of proceedings supplementary to execution pending the determination of any action he may institute to have the judgment adjudged paid.

Present: Pitzsimons, Oh. J., Conlan and O’Dwyer, JJ.

Order reversed and motion denied, with ten dollars costs. Order for examination of defendant reinstated, and defendant directed to appear thereunder upon a day to be named. Leave granted defendant to apply for a stay of proceedings pending the determination of any action he may institute to have judgment adjudged paid.  