GRASSMUCK v. RICHARDS

GRASSMUCK v. RICHARDS. N. Y. Supreme Court, Chambers, First Department; October, 1876. Supplementary Proceedings. A' third person will not he required to pay over to the creditor money he owes the debtor, if he claims an offset. A receiver should be appointed. Motion for third party to pay plaintiff money due a judgment debtor. John G. Grassmuek began an action against William H. Richards, a resident of Japan, by an attachment on a house,- which he owned here, and service of the summons by publication. After judgment had been obtained and execution issued, but before its return, an order was obtained for the examination of William B. Brown, a tenant of the defendant. On the examination it was discovered that he owed the defendant six months’ rent at $75 per month. He claimed an offset of $75 for repairs, &c. Defendant also had an agent here, who claimed that the rent due should be paid to him. Application was thereupon made to the court for the tenant to pay to the plaintiff the rent due. Adolphus T. Pape, for the motion. Arnold, Elliot, & White, opposed. [MAJORITY — Barbett, J.] Barbett, J. The third person claiming an offset substantially denies a part of the debt. Under section 299, such debt can only be recovered by action by a receiver. The plaintiff is entitled to an injunction until a sufficient opportunity is given to the receiver to commence an action. The other question discussed can also be better determined in such an action.