
    Joseph E. McAllister, Resp’t, v. Lyman Bailey et al., App’lts.
    
    
      (Court of Appeals, Second Division.,
    
    
      Filed October 6,1891.)
    
    1. Attachment—When sheriff cannot levy upon money in the hands OF AN ASSIGNEE FOR BENEFIT OF CREDITORS.
    The proceeds of the sale by an assignee for the benefit of creditors of property held by him as assignee cannot be levied on by the sheriff by virtue of an attachment issued against the property of the assignors.
    3. Conversion—When payment not voluntary.
    Plaintiff, the assignee, upon a demand being made for the money by the sheriff, upon an attachment, drew it from the bank, laid it on the table, but forbade the sheriff taking it. Held, that the taking under the circumstances constituted conversion and was in no sense a voluntary payment on the part of the plaintiff.
    Appeal from a judgment of the general term, third department, affirming a judgment entered upon a verdict directed by the court at the St. Lawrence circuit.
    
      V. P. Abbott, for app’lts; E. H. Neary, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 484.
    
   Haight, J.

This action was brought for the wrongful taking and conversion of $7,197.64.

The defense was that the defendants, as sheriff and under sheriff, levied on the same under an attachment issued in an action in which the White Sewing Machine Company was plaintiff and Sylvanus B. Stinson and James J. Rutherford were defendants.

It appears that Stinson and Rutherford had made an assignment for the benefit of creditors to the plaintiff; that the plaintiff, as such assignee, had sold and converted the property into money which he had deposited in his own name in the Bank of Grouverneur. Thereupon the defendant Bailey undertook to levy upon such .money and for that purpose served upon the plaintiff a copy of the attachment and at the same time delivered to him a written notice annexed, to the effect that he attached all the money and other proceeds which had come to the hands of the plaintiff by reason of the sale of the stock of goods formerly in the possession of Stinson and Rutherford, and required him to deliver over such money, certificates of deposit and bank books, etc. The plaintiff then caused to be served upon defendant a certificate as to the amount of money that had come to his hands from the sale of the goods before mentioned; that the same was on deposit in the Bank of Grouverneur, and that he objected to the defendants attaching the same and demanded the immediate surrender of the money and bank books so attached.' Thereupon the defendant Smith, at the instance of the defendant Bailey, called upon the plaintiff and again demanded the surrender of the money under the attachment. After which the plaintiff drew the money from the bank, placed it upon a table and then told the defendant that that was the money, but that he forbade his taking it The money was thereupon taken by the defendants and this action was brought.

Upon the argument of this appeal the counsel for the respective parties conceded that the sheriff could not properly levy his attachment upon the money which the plaintiff had realized from a sale of the assigned property. Thurber v. Blanch, 50 N. Y., 80; Castle v. Lewis, 78 id., 131-136; Anthony v. Wood, 96 id., 180.

It was claimed, however, that the transaction was, in effect, a voluntary payment of the money to- the defendants, and that consequently it could not be recovered back by the plaintiff. Numerous authorities are cited in support of this contention. They are to the effect that moneys paid under a mistake of the law, but with a full knowledge of the facts, cannot be recovered back. We cannot see that the principle established in those cases has any application or bearing upon that under consideration. The defendants, as sheriffs, had an attachment which they pretended to levy upon the money in question. The plaintiff claimed the right to hold the same as assignee for the benefit of creditors, and objected to their levying upon the same. The defendants still asserted their right to the possession of the fund, and demanded its surrender. It was under these circumstances that the plaintiff went to the bank, drew the money and laid it upon the table. He did not hand it over or pay it to the sheriff; on the contrary, he forbade him to take it.

It seems to us clear that the taking by the defendants under these circumstances constituted a conversion, and that it was in no sense a voluntary payment on the part of the plaintiff.

The judgment should, therefore, be affirmed, with costs.

All concur.  