
    Walter L. McCorkle, as Receiver, etc., App’lt, v. Morris S. Herrmann, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Pleading—When not defective.
    A pleading is not necessarily open to the criticism of being defective because some of its allegations depend upon conclusions or inferences of law.
    2. Supplementary proceedings — Receiver — Right to money due
    DEBTOR SUBSERVIENT TO WHAT CLAIMS.
    The plaintiff as receiver of one M., brought action against the defendant to rebover a certain sum of money due and owing by the defendant to . M. The defendant alleged that the entire claim as set forth by the plaintiff had been duly subjected to certain mechanics’ liens which existed at and prior to the commencement of the plaintiff’s action. The plaintiff demurred to that portion of the answer setting up the liens, claiming that his title as receiver extended back so as to include his judgment debtor’s property at the time of the service of the order requiring him to appear and be examined. Held, that although the plaintiff became vested with all the right, title and_ interest of his" judgment debtor in and to the fund in question as of the time when the preliminary order was served, he gets no greater rights than his judgment debtor could enforce; that inasmuch as the creditors have, under the permission given by statute, asserted a claim to the debt due the judgment debtor, their rights are superior to those of the plaintiff or his debtor.
    Appeal from order overruling demurrer by plaintiff to the defendant’s answer and from judgment dismissing complaint on the failure of plaintiff to comply with the terms of the order.
    
      Howard R. Bayne, for app’lt; F. C. Reed, for resp’t.
   Van Brunt, P. J.

-—The plaintiff, by his complaint, alleged his due appointment as receiver of one John J. Murphy in proceedings supplementary to execution, ■ and that Murphy had entered into a contract with the defendant to perform certain work, labor and services, and to furnish certain materials in completing and furnishing a build ing for the defendant for a price agreed upon; that Murphy duly performed his contract, and by virtue thereof there was due and payable to the plaintiff, as receiver, the sum of $1,400, which sum the plaintiff has duly demanded and payment had been refused.

The answer admits the making of the contract, but denies its performance, ' and then alleges that the entire alleged claim set forth in the complaint has been by due proceedings under the statutes of this state subjected to liens under the law known as the Mechanics’ Lien Law, in favor of various creditors of said Murphy as contractor and material men and laborers and mechanics who furnished materials and performed the labor on said building, and that the said' liens are subsisting, and that such as is in any way due or owing for which the defendant is liable to pay for the remainder claimed to be owing, is chargeable under said liens so made with the amount thereof prior to the alleged claim of the plaintiff, and that said liens were valid and in existence at and prior to the commencement of this action. The defendant then alleges that he is informed and believes that each of said claims is for a valid debt due from Murphy to the respective parties, and that the amount of said liens exceeds the alleged balance due to the plaintiff, and any residue due under the contract on which this action is brought, and that by reason thereof said alleged balance is payable to said lienors and not to the plaintiff, and that the plaintiff and defendants in the action to foreclose said liens, are necessary parties thereto, in order to a complete and final determination of the rights and interests of the parties.

The plaintiff demurred to that portion of the answer attempting to set up these liens, and his demurrer seems to be based upon two grounds: first, because there are no allegations of fact showing the existence of the liens in question, hut the allegations contained in the answer are simply allegations of conclusions or inferences of law; and, secondly, because the plaintiff’s title as receiver to the personal property of the judgment debtor extends back so as to include his personal property at the time.of the service of the order requiring him to attend and be examined.

This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It seems to us that in raising'the question as to the sufficiency of the allegations in the answer, the learned counsel has failed to distinguish between conclusions of fact and conclusions of law and statements of evidence. The argument which has been addressed to us in support of this demurrer is, that the various steps must be alleged by which the lien vas- established, and that if any of these are absent the pleading is defective. We think that a pleading of that description would be subject to the criticism that evidence was being set up and not allegations of fact. It is true that many conclusions of fact depend upon conclusions oí law; but this circumstance in no way affects their competency.

In pleading a judgment it is not necessary to allege aE the steps which were taken in order to secure the judgment. It is sufficient to say that the judgment has been duly entered It is undoubtedly a conclusion of law whether the judgment has or has not been duly entered, but it is also a conclusion of fact. It is a conclusion of law as to whether the proper steps have been taken to authorize the entry of the judgment and to confer jurisdiction.

The same is true in regard to the allegation that an action has been commenced and is pending between the same parties for the same cause off action. As to whether an action has been commenced or not is a conclusion of law depending upon facts proven. It is also a conclusion of fact depending upon the determination of that question as to whether the steps have been taken by which an action was commenced. So in the case at bar, where the allegation is that due proceedings were taken by which these liens were filed, the pleader has complied with the rule of' alleging conclusions of fact and not alleging the evidence from which such conclusions must be drawn. The next objection is clearly untenable.

The statute gives a creditor a lien against a particular fund upon his doing certain things, and that lien is superior to the claim of any other creditor who has not taken, the steps designated by the statutes to secure a lien. The plaintiff, by his appointment as receiver, undoubtedly became vested with all the right, title and interest of his judgment-debtor in and to this fund as of the time when the preliminary order was served. But he gets no greater right than hq would have had.if his judgment-debtor had assigned the same to him on that day, and he cannot enforce any other or greater rights than his judgment-debtor could enforce. His creditors, by the permission of the statute, have been enabled to assert a claim upon this debt due to the judgment-debtor, and, by reason of the statute, having taken those steps, they have a superior claim upon this debt due to him, and by the transfer of this debt to another person, whether by operation of law or by a voluntary assignment, the plaintiff’s debtor could not deprive his creditors of the rights which the law conferred upon them.

We think, therefore, that the demurrer was properly overruled, and that the judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.  