Opinion
April 9, 1937.
Appeal from Supreme Court of New York County.
Gustavus A. Rogers [ Jerome H. Adler and Sidney Arvan with him on the brief; Jenks Rogers, attorneys], for the appellant.
Henry L. Bayles of counsel [ Edward Feldman with him on the brief; Carl J. Austrian, attorney], for the judgment creditor, respondent.
Present — MARTIN, P.J., O'MALLEY, UNTERMYER and DORE, JJ.
The affidavits present issues of fact which preclude the granting of the judgment creditor's motion under section 794 of the Civil Practice Act, to require the third party to pay to the judgment creditor the amount of judgments in favor of the judgment debtor against the third party. The third party submitted affidavits tending to establish that after the entry of the judgments in favor of the judgment debtor an agreement was made between these parties that in consideration of the retention by the judgment debtor of certain shares of stock belonging to the third party, and for other considerations, the judgments should be satisfied. If this be true, then there is nothing due on the judgments from the third party to the judgment debtor and the motion by the judgment creditor to require payment to it of these judgments must fail.
The order should be reversed, with twenty dollars costs and disbursements, and the motion denied.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied.