¶1Appeal from a judgment entered by the direction of the court and from an order denying a motion for a new trial.
¶2This action was brought by the assignee of Elizabeth Burke to recover the sum of $145.
¶3The evidence shows that about the 12th day of February, 1892, the assignor, Elizabeth Burke, placed with the defendant (who was an auctioneer) a quantity of furniture to be sold for her.-
¶4It further appears that the property was sold on the fourteenth instant for the sum of $413, also that on the twenty-*115fourth the defendant paid to the said Elizabeth Burke $186, at the same time claiming that his fees were $82, leaving a balance in Ms hands of $145, which forms the subject-matter of this action.
¶5It further appears that the said Elizabeth Burke, on the twenty-fifth day of February, assigned this claim to her sister, Ellen Meagher, the present plaintiff. It further appears on the part of the defendant that one Mr. Stewart had a claim against the assignor, Elizabeth Burke, for rent, and that on the twentieth day of February an attachment was issued out of the Third District Court of the city of Hew York, and that on said day one James McCauley, then a'marshal of said city, pursuant to the requisition contained in said attachment, levied upon the sum of $145, produced to him, and then being in the possession of the defendant, and said by him to be the money of the assignor, Elizabeth Burke, and took a receipt therefor.
¶6It also appéars that on the first day of March following the said Stewart obtained a judgment in said attachment suit against the said Elizabeth Burke, and on the third day of March said sum of $145 was paid over to the marshal and his receipt taken therefor.
¶7Ho question arises as to .the regularity of the attachment proceedings, and the only question presented for review is whether or no the money in the hands of the defendant was the money of the said assignor, and as such attachable by her creditors, or a chose in action in the hands of the defendant, and not the subject of attachment or levy on execution.
¶8The defendant testified that he put the entire proceeds of the sale of furniture in the safe, where it remained until the twenty-fourth day of February, when he took out $186 for the said Burke and $82 for himself as expenses, leaving $145, or the amount attached, in his safe.
¶9If there was no dispute as to this testimony the attachment proceedings would have afforded the defendant a perfect defense, and the complaint should have been dismissed.
¶10The assignor was called as a witness, and testified that the defendant told her he had the money in bank.
¶11*116The witness Arrowsmith testifies that on either the twenty-sixth or twenty-seventh of February he had a conversation with the defendant, in which he asked the defendant where the money was, and he answered that it was in bank. This ■ testimony presented a fair question of fact. If the- proceeds of the sale was placed in a bank where it mingled with other moneys, its identity would be lost, and it would then become only a credit or chose in action, and as such not the subject of attachment. Crocker Sheriffs, § 457; Carroll v. Cone, 4 Barb. 220.
¶12At the conclusion of the trial both plaintiff and defendant moved for a . direction, .thereby making the trial justice sole judge of the facts, and as the case turned upon a disputed question of fact, we do not feel warranted in disturbing the judgment.
¶13Affirmed, with' costs. ■
¶14Ehrlich, Ch. J., and Fitzsimons, J., concur.
¶15Judgment and order affirmed, with costs.