
    In the Matter of the Application of Harry Rothschild, Appellant, for a Peremptory Writ of Mandamus against Elgin R. L. Gould, Chamberlain of the City of New York, Respondent.
    
      Mandamus directing the chamberlain of New York to pay over money, deposited by a third person in lieu of bail, to him—not granted where the chamberlain is enjoined, by orders in proceedings supplemental to executions against the party indicted, from paying over the money.
    
    Five thousand dollars having been deposited with the chamberlain of the .city of New York in lieu of bail for one Moses Schwartz, who was under indictment ' in the county of New York, the chamberlain gave a receipt for the money stating that it had been deposited by one Harry Rothschild for the said Moses Schwartz. - The indictments against Schwartz were subsequently dismissed. Schwurtz thereupon executed an affidavit stating that the money deposited -in lieu of bail belonged to Rothschild and not to him and requested the chamberlain to pay the money deposited to Rothschild. The chamberlain refused to comply with this request for the reason that he had been served with two orders made in' supplementary proceedings instituted by judgment creditors of . Schwartz which recited .that it appeared to the satisfaction of the justices issuing the Orders that the chamberlain had in his possession personal property belonging to Schwartz .exceeding ten dollars in value and which enjoined the ' chamberlain from transferring or making any disposition of any property belonging to Schwartz.
    
      Held, that as long as the orders made in supplementary proceedings remained in force,, a mandamus should not be issued requiring the chamberlain to pay the money deposited over to Rothschild; -
    That the fact that the examinations under the orders in supplementary proceedings had been adjourned to a time thereafter to he fixed did not constitute an abandonment of the supplementary proceedings rendering the injunction inoperative, as, under section 2454 of the Code of Civil Procedure, a proceeding supplementary to execution must be discontinued by an order of a judge and does not fall of its own weight because of a failure to prosecute it.
    McLaughlin and Ingraham, JJ., dissented.
    Appeal by the relator, Harry Rothschild* from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of April, 1903, denying the relator’s motion for a peremptory writ of mandamus.
    
      A. H. Parhhurst, for the appellant.
    
      Ohwrles A. O'Neil, for the respondent.
   Patterson, J.:

The relator applied to the court below for a peremptory writ of mandamus to compel the chamberlain of the city of Hew York to pay over to him the sum of $5,000 which had been deposited with the chamberlain in lieu of bail for one Moses Schwartz, who was under indictments in the Court of General Sessions of the Peace of the County of Hew York. At the time the money was deposited a receipt was given in which it is stated that Harry Rothschild “ for the defendant above named, has deposited with the Chamberlain of the City of Hew York, this day, the amount of Five thousand dollars * * * as security for said defendant’s appearance * * * pursuant to Section 586 of the Code of Criminal Procedure.” On the 6th day of January, 1903, the indictments- against Schwartz were dismissed on motion of the district attorney. On the 2d of February, 1903, an order was made by one of the justices of the Court of General Sessions of the Peace of the County of Hew York directing that, by the consent of the district attorney, the County Treasurer” of Hew York refund the money deposited as aforesaid to the defendant. Upon this order being presented to the chamberlain he declined to pay the money, for the reason that he had been enjoined by orders of justices of the Supreme Court — one made in June, 1902, and the other in August, 1902—from transferring or making any disposition of any property belonging to Moses Schwartz. These restraints were contained in orders for the examination of the chamberlain in supplementary proceedings brought by judgment creditors of Schwartz. ■ The only reason, ascribed by the chamberlain for not-paying the money is the restraint contained in tho,se orders. On the chamberlain’s refusal to pay, the relator made application for a peremptory writ of mandamus, stating in his moving papers that the $5,00,0 was his money ; that he had deposited it ¡in lieu of bail, and also showing by an affidavit of Schwartz that the money belonged to the relator and hot to him, Schwartz. A demand had been duly made on the chamberlain for the money, and an affidavit of Schwartz setting forth the facts and containing' a request that- the $5,000 be paid over to Rothschild was presented to the chamberlain before application for a writ was made. The application has been denied by the court below and the relator appeals.

In People ex rel. Meyer v. Gould (75 App. Div. 524) we held tliat where money is deposited-pursuant to section 586 of the Code of Criminal Procedure, by a third party, in lieu of bail for one under indictment and as security for the appearance of the person so indicted, that money is presumed to be the property of the defendant 'in the indictment only for the purposes of that particular pro- ■ ceeding, and where the person so indicted executes an instrument admitting that the money so deposited does not belong to him, but to a third person who deposited it, and directing that the money ¡be paid to such third person, a judgment creditor of the defendant in the indictment has no interest in the money. That, however, was a proceeding brought by a creditor in which no question involving the real ownership of the money could 'have been litigated. . It Was shown that the money actually belonged to the third party who deposited it, and the fact was not disputed.

The case.just adverted to is not controlling in this proceeding. Here the chamberlain was ¿njoined from paying out the money ’by orders which recite that it appeared to the satisfaction of the justices who issued them that tlie chamberlain had in his possession personal property of the defendant exceeding ten dollars in value. ‘ The order of the Court of General Sessions directed the chamberlain to pay the money to the defendant. The injunctions, arrested the money in the hands of the chamberlain, and so long as they are operative, that officer should not be compelled to incur the peril of determining for himself to whom payment should be made. As remarked by the court below: While the orders stand, there remains a question of fact as to the right of these creditors to reach the fund, and they are entitled to be heard, but they are not now before the court.” In People ex rel. Meyer v. Gould (supra) the creditor was before the court, and it was admitted that the money belonged to the third party who had deposited it. But it may be said that the injunctions were not operative in this case, because the orders for the examination of the chamberlain in supplementary proceedings were spent. Upon an examination of those orders, as they are printed in the record, we find that as to both of them the examinations were adjourned to a time thereafter to be fixed, and it may be urged that that was tantamount to an abandonment of the proceedings. Whatever difference of opinion there may have been at one time respecting the effect of such an indefinite adjournment of the proceeding, it is now provided by section 2454 of the Code of Civil Procedure, which relates to proceedings of this character, that the discontinuance must be made by order of a judge. The proceeding does not fall of its own weight for neglect to prosecute it. (Riddle & Bullard Supp. Proc. [3d ed.] 172 et seq. ; Bradn. Pr. Supp. Proc. [2d ed.] 119.)

These injunction orders are still effective and the chamberlain should not be required to pay over this money until the restraint now imposed upon him is removed.

The order appealed from should be affirmed, with costs.

Hatch and Laughlin, JL, concurred.

McLaughlin, J. (dissenting):

The fact is not disputed but what the $5,000 held by the chamberlain of the city of Hew York belongs to the appellant Rothschild. It was deposited by him with the chamberlain in lieu of bail for one Schwartz. These facts appear not only from the affidavits of Rothschild and Schwartz, but also from the receipt which the chamberlain gave when the money was deposited. But it is said that the application was properly denied because the chamberlain was enjoined by orders, of the court from paying the money to Rothschild. The orders referred to were granted in proceedings supplementary to execution, instituted upon judgments against Schwartz, and the chamberlain was restrained by such orders from transferring or making “any other disposition of any property belonging to said Moses Schwartz.”' Bnt this money does not belong to Schwartz and cannot be reached by his creditors. (People ex rel. Meyer v. Gould, 75 App. Div. 524.) It belongs to Rothschild, and Schwartz' has no interest in it, the indictments under which he was admitted to bail and in lieu .of which the money was deposited having been dismissed. Such orders, therefore, do not apply to the acts of the chamberlain with reference to this money and if they did they are now quite ineffectual to prevent the chamberlain paying the money, inasmuch as it appears that they have been abandoned. One of these 'orders was granted on the 3d and made returnable on the 5th of June, 19.02. It does not appear that the proceeding was ever adjourned or that anything was done thereafter. It is true there appears upon the order the following statement: “ This examination is further adjourned to a time.to be hereafter fixed. Jany. 20, 1903.” But the statement is not signed by any one.. It does not appear when or by whom it Was made and, manifestly, is quite insufficient to show an adjournment or that-the proceeding has been kept alive. The other order was granted on the 8th of August, 1902, and appears to have1 been adjourned until November 15, 1902, but it does not .seem to have been thereafter adjourned. There appears upon this order the following statement:

’ “N. Y., 9/8/02.
“Adjourned to Dec. 15 /02. E. H.
“ “ Jan. 16 /03. J. F.
“ “ “ 20 /03. J. J: F.
“ Adjourned to a time to be hereafter fixed.
' “ Affidavit of service.”

Who E. H. is or.whether he had any power to adjourn nowhere, appears, and the same is equally true of J. F. and J. J. F., and what purports to have been the final adjournment does not seem to have been signed by any one. In addition to this an adjournment .to a time to be “ hereafter fixed ”' is, as it seems to me, an abandonment of the original proceeding. (Squire v. Young, 1 Bosw. 690; Wright v. Nostrand, 47 N. Y. Super. Ct. 454; Thomas v. Kircher, 15 Abb. Pr. [N. S.] 342.)

It was not ,necessary that an order be obtained under section 2454 of the Code of Civil Procedure to terminate the proceedings, in so far as it restrains the chamberlain. A termination in this respect can be inferred from the fact that the plaintiff has neglected to proceed under the order within a rea'sonáble time or has failed to have the proceeding adjourned from time to time.

I think the order appealed from should be reversed and a mandamus granted directing the chamberlain to pay the money which he holds to Rothschild.

Ingraham, «L, concurred.

Order affirmed, with costs.  