KENNERLY v. TOMPKINS

KENNERLY v. TOMPKINS. N. Y. Supreme Court, First District, Chambers; September, 1889. 1. Arrest; return of deposit made in lieu of bail.] .Under Code Civ. Pro. § 586, a third person who has deposited in lieu of bail the sum specified in the order of arrest, and at the same time taken the written direction provided for by that section for the return of the deposit, is entitled to its return upon a vacatur of the arrest, in the absence of auy fraud upon the defendant’s creditors. 2. Amendment of defective aclcnowledgment.] A defective acknowledgment of defendant’s direction to return a deposit made by a third person in lieu of bail is amendable, nunc pro tunc. Motion to require the return of a .deposit made in lieu of bail. Juba B. Kennerly sued George Tompkins, and an order of arrest in the action was obtained against the defendant, and in lieu of bail, Paul Wilcox, defendant’s attorney, deposited the moneys in question. It appeared that the plaintiff served a notice with a certificate thereon indorsed upon the sheriff after the deposit was made, to the effect that he intended to attach the moneys by virtue of a warrant of attachment granted in another action between the parties to this action. Wilcox alleged that the moneys in question were his own private funds and deposited as such, and the order of arrest against the defendant having been vacated, Wilcox now moved for an order requiring the county clerk or the city •chamberlain to return the deposit. Wilcox & Goodwin, for the motion. Henri Pressprich, opposed. Code Civ. Pro. § 586, is as follows : “ At any time before the deposit is paid into court, the defendant may deliver to the sheriff a written direction, to pay it to a third person, therein specified, in the event that the defendant becomes entitled to a return thereof; but without expressing any other contingency. The direction must be acknowledged or proved, and certified, in like manner as a deed to be recorded; and the sheriff must deliver it to the officer who receives the deposit, who must note the substance thereof, with the entries of the deposit in his books, and upon the two certificates of payment into court. The money thus deposited is deemed the property of the third person, subject to the plaintiff’s interest therein, and subject to the rights of a creditor of the defendant, where the direction was given for the purpose of hindering, delaying or defrauding creditors. The money, or the residue thereof, must be paid to the third person, where, by the provisions of the last two sections, it is required to be refunded to the defendant, or his representative.” There is a note on Title to Deposit as Security in 18 Abb. N. C. 323. [MAJORITY — Barrett, J.] Barrett, J. Section 586 was intended to obviate the hardships resulting from the law as laid down in Herrmann v. Aaronson (3 Abb. Pr. N. S. 389, 392; affi’d in 8 Abb. Pr. N. S. 155) and kindred cases. Now a friend can safely lend a defendant who has been arrested the amount of bail fixed in the order, taking contemporaneously the written direction specified in this section. This was done in the present case, and the third person who lent the money and took the written direction is entitled to repayment, the order of arrest having been vacated. Upon these affidavits, there is no possible question of fraud, and the court is bound to hold that the direction was not given for the purpose of hindering, delaying or defrauding creditors. The only question is as to the failure to properly acknowledge the written direction. In my judgment this is amendable. The third person’s rights, under this new , provision, depend upon the actual facts and the written •direction. The acknowledgment is required for the purpose •of noting the substance of such directions in the clerk’s books, •and upon the certificate of payment into court. I cannot think that there is an analogy between such a case and that of an assignment which (under some statutes) is only to go into effect upon a particular form of acknowledgment, nor do I think that a party fairly and justly entitled to money deposited for one specific purpose should have it impounded generally upon such a technicality. I will give the defendant leave to complete the acknowledgment nunc pro tunc, and thereupon direct the payment of the money to Mr. Wilcox. The operation of the order, however, to be suspended for two days to give the opposed party an opportunity to apply for a stay if an appeal be taken. For the form of the certificate, notice and direction, see 2 Abb. New Pr. & Forme, 396.