In the Matter of Wilmerdings & Mount, Respondents, v. N. Hill Fowler, Appellant

In the Matter of Wilmerdings & Mount, Respondents, v. N. Hill Fowler, Appellant. (Argued November 13, 1873; decided November 18, 1873.) Where an attorney, Without fraud, collects money as attorney and pays it over to his client, although the one paying it shows he is entitled to have it refunded, an order will not be granted requiring the attorney personally to refund it; but in such case the fact of payment over should be clearly shown. This was an appeal from ati order of General Term affirming an order of Special Term, requiring defendant to refund certain moneys paid over to him by plaintiffs. Defendant is an attorney; as such, he obtained judgment in favor of one Banberger against Lowenstein. He instituted supplementary proceedings, in which a receiver was appointed. Proceedings were also instituted for the examination of the plaintiff herein, as having in their hands the avails of certain property belonging to said judgment debtor, Wilmerdings was examined therein, and an order granted requiring plaintiffs to pay over said fund to defendant. This was done, and is the fund in question. One Rice, claiming to own the property and the avails thereof, brought suit against plaintiffs and recovered judgment against them for the amount, whereupon this motion was made. This court held as above, reversed the orders and remitted the matter to the Special Term to be reheard upon further proofs on both sides. Amma J. Parker and N. Rill Fowler for the appellant. C. Bambridge Smith for the respondents. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for reversal and for remitting proceedings to Special Term for rehearing on further proofs. Chuboh, Ch. J., Allen and Gboveb, JJ., concur. Ordered accordingly.