Merriam v. Wood & Parker Lithographing Co.

• Citation: 49 N.E. 685,155 N.Y. 136
• Parties: MERRIAM v. WOOD & PARKER LITHOGRAPHING CO.
• Decision Date: 01 March 1898
• Court: New York Court of Appeals

155 N.Y. 136

49 N.E. 685

MERRIAM

v.WOOD & PARKER LITHOGRAPHING CO.

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, appellate division, First department.

Action by Edward J. Merriam against the Wood & Parker Lithographing Company. From an order of the appellate division (46 N. Y. Supp. 484) vacating an attachment granted plaintiff, he appeals. Dismissed.

Almet R. Latson, for appellant.

John J. Townsend, for respondent.

O'BRIEN, J.

This is an appeal from an order granting restitution under section 1323 of the Code, made under the following circumstances: On November 7, 1896, the defendant, a domestic corporation, made an assignment to one Lockwood for the benefit of creditors. The assignee proceeded to execute the trust, but found substantially all the assigned property in the hands of the sheriff, who held it under judgments and attachments obtained prior to the assignment. One of the attachments was granted and served two days before the assignment in an action against the corporation by the plaintiff, and that is the action in which the proceedings now sought to be reviewed in this court were had. The assignee made a motion to the court in the action to vacate the attachment, which was denied by an order to that effect entered January 26, 1897. On the day after the entry of this order the sheriff sold the property in his hands under stipulations from the various creditors who had obtained liens by judgment and execution or by attachment. On the 23d of February, 1897, the plaintiff recovered judgment in the action against the corporation, and issued execution thereon. On March 1, 1897, the sheriff paid to the plaintiff the amount of the judgment, $2,726.80, from the proceeds of the sale of the property attached, but in the meantime, and before the payment was made, the assignee had appealed from the order denying the original motion to vacate the attachment. The appeal was decided July 2, 1897 (46 N. Y. Supp. 484), and the order appealed from was reversed, and the original motion to vacate the attachment was granted. The effect of the decision was that the plaintiff had in his hands the money represented by the judgment,though the attachment under which he had obtained it had been vacated. On the 8th of October, 1897, the appellate division, on motion of the assignee, ordered that the plaintiff make restitution to the assignee, and pay over to him the money thus received. It is from that order that this appeal has been taken.

Section 190 of the Code permits appeals to this court as matter of right in three cases only: (1) From judgments finally determining actions; (2) from orders finally determining special proceedings; (3) from orders granting new trials on exceptions, where the appellant stipulates that, upon affirmance, judgment absolute shall be rendered against him. If the order in this case does not fall within some of the three classes specified, we have no power to review it. Of course, it is not a final judgment in an action, or an order granting a new trial, and this leaves the appellant no ground to stand upon here, unless he can show that it is a final order in a special proceeding. There is, perhaps, some confusion in the cases...