Opinion
October, 1900.
Lynott B. Root (John Burt, Jr., of counsel), for appellant.
William R. Baird, for respondent.
It appears that one Julia A. Germond, on February 5, 1900, recovered a judgment against one Otto Rice, in the Supreme Court of Rockland county, on which a sale was had under an execution and the plaintiff in that action became the purchaser at such sale of the business of Otto Rice, and of the lease of the premises held by him, and subsequently leased the same to the plaintiff in this action. At the time the plaintiff acquired the business and the lease, notice was given to the defendant Raynor of the change, and he subsequently paid the proceeds of sale to him down to about March 20, 1900, and this action is brought for the proceeds of the merchandise since delivered to the defendant by the plaintiff, and sold by the former for the plaintiff's account.
Subsequently, in another action against Rice by other plaintiffs, a judgment was recovered against him, and in supplementary proceedings a receiver was appointed of the defendant Rice, and the latter now claims to be entitled to the amount for which this action is brought.
If this order is permitted to stand it virtually sets aside a judgment of the Supreme Court and a sale thereunder under an execution, and a lease to the plaintiff, and as this court has no equity powers it is difficult to see how this could be done. In the application which the defendant made to the Special Term for the order appealed from, he swears he has a good and substantial defense upon the merits to the cause of action alleged, and, if this be so, interpleader clearly will not be ordered. He can, if this allegation be true, successfully contend against the plaintiff herein upon the trial, and in that view of the case, and that only, can issue be raised by an answer on the merits and be finally determined. If the order be allowed to stand, then the only recourse would be the recovery of a judgment herein setting aside the judgment recovered in the Supreme Court by the person from whom the plaintiff derived title, and such a judgment could not be recovered here. There is no way in which the relief sought by the defendant can be obtained, except in an action instituted for that purpose in a court of equity.
Entertaining these views, we think the order appealed from should be reversed, with costs, and the defendant be required to serve an answer to the complaint under his sworn statement that he has a good and substantial defense to the cause of action stated in the complaint.
Order appealed from reversed, with costs.
HASCALL, J., concurs.
Order reversed, with costs.