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13 Abb. Pr. 253

Dodge v. Porter

The Superior Court of New York City

Decided October 15, 1861

The Superior Court of New York City · decided 1861-10-15

This was an action pn a promissory note, alleged to have been made by the defendants, Porter and Gordon, under the firm-name of Geo. B. Gordon. An attachment was issued on July 7, 1860, and levied upon certain goods belonging to Gordon. But on June 23, 1860, an execution had been issued upon a judgment of the Supreme Court in favor of Porter against Gordon, and levied upon the same goods. After this double levy, the‘goods were sold by the sheriff.

Decided 1861-10-15

By the Court.*— Moncrief, J.

¶1—If the plaintiffs recover judgments in their several actions, they will be entitled to be paid out of the property attached, whether it be the property of a firm composed of Porter and Gordon, prosecuting business under the firm-name of G. B. Gordon, or the individual property of either of said copartners. hTo reason is assigned why such property or its proceeds should be taken from the hands or custody of the sheriff. Section 232 of the Code requires the sheriff among other things, “to keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in the action in which the attachment issued.” And section 237 of the Code directs, “In case judgment be entered for the plaintiff, the sheriff shall satisfy the same out of the property attached by him.”

¶2If the plaintiffs recover judgment in their attachment-suits, it will be their right to have them satisfied out of the proceeds of the attached property. If the sheriff pays the money to Porter, or to any one to whom he assigned after the attachments were levied, he will pay it contrary to his duty, and will be liable to the plaintiffs in the attachment-suits. There is no allegation that the sheriff or his sureties are irresponsible. We are not aware of any ground on which the order appealed from can be justified.

¶3*255The order was, therefore, erroneous in directing the transfer of the property attached from the possession of the sheriff, and should be reversed without costs.

¶4Order reversed.

¶5 Present, Bosworth, Ch. J., Hoffman, Woodruff, Moncrief, and White, JJ.

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