Sheehy v. Madison Square Garden Corp.

• Decision Date: 31 December 1934
• Citation: 266 N.Y. 44,193 N.E. 633
• Parties: SHEEHY, Sheriff, et al., v. MADISON SQUARE GARDEN CORPORATION.
• Court: New York Court of Appeals Court of Appeals

266 N.Y. 44

193 N.E. 633

SHEEHY, Sheriff, et al.,

v.MADISON SQUARE GARDEN CORPORATION.

Court of Appeals of New York.

Dec. 31, 1934.

Action by John E. Sheehy, Sheriff of New York County, and another against the Madison Square Garden Corporation. From an order of the Appellate Division (241 App. Div. 504, 272 N. Y. S. 433), reversing a judgment of the Trial Term without a jury in defendant's favor and granting plaintiff a new trial, defendant appeals, stipulating for judgment absolute in case of affirmance.

Reversed, and judgment of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, First department.

James K. Crimmins and Charles Pickett, both of New York City, for appellant.

Robert Seelay and Moses Kobrinetz, both of New York City, for respondents.

POUND, Chief Judge.

In an action brought by the coplaintiff, Strotz, against one William T. Johnson, a nonresident, an attachment was issued. The sheriff levied the attachment on what was claimed to be money in the hands of the defendant belonging to Johnson. The defendant disregarded the attachment, and this action was brought against it to recover the amount of the judgment against Johnson, amounting to some $15,000.

On the trial the parties waived findings of fact and conclusions of law, and the trial court directed judgment in favor of the defendant. The Appellate Division reversed and granted a new trial.

The material facts are simple and not in dispute. Johnson had a contract with Madison Square Garden under which he was to take practically the entire charge of the production of a rodeo or Wild West show at Madison Square Garden in New York City. After providing in detail the many things it was incumbent upon Johnson to perform, it reads: ‘In consideration of the performance of the foregoing terms and conditions, the Garden agrees to pay Johnson the sum of Sixty-five thousand Dollars ($65,000) in payments as follows: [Then follows a statement of the amounts to be paid and the days on which they shall be paid.]’

The rodeo was to open on October 14, 1932, and close on the 29th. The time was extended subsequently by a supplemental agreement. Payments were to be made before the opening, and were so paid. On October 15, the day after the opening, the attachment was levied. No payments were then due, nor had they been earned. There was therefore at that time no money or property right actually in existence to which the warrant could attach. The defendant ignored the warrant and made the payments which subsequently became due.

Plaintiffs, recognizing the difficulty of attaching a mere right to earn money, now urge that there was some property right arising out of the contract, in the nature of a chose in action which was leviable. Johnson's right to payment at the time was entirely...