Lynch v. Johnson
New York Supreme Court
THE plaintiff, under an assignment from Acker, sued the defendant to recover moneys due from him to Acker. The defense was, that previous to the assignment, Thomas and William Ryer recovered a judgment against Acker, and that, on the 4th of March, 1863, an order was served on Johnson requiring him to appear and be examined as to his indebtedness to Acker, and that on the Í6th.of March ay v order was obtained directing J ohnson to pay to the said T. & W. Eyer the amount of…
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THE plaintiff, under an assignment from Acker, sued the defendant to recover moneys due from him to Acker. The defense was, that previous to the assignment, Thomas and William Ryer recovered a judgment against Acker, and that, on the 4th of March, 1863, an order was served on Johnson requiring him to appear and be examined as to his indebtedness to Acker, and that on the Í6th.of March ay v order was obtained directing J ohnson to pay to the said T. & W. Eyer the amount of his indebtedness to Acker, to be credited on the judgment against Acker. Acker assigned the claim to the plaintiff after…
1Opinion of the Court
By the Court, Ingraham, J.
It was not necessary that any order should have been served on Acker, in the proceeding against J ohnson. The 294th section of the Code says : “ The judge may, in his discretion, require notice to be given to any party in such manner as may seem to him proper.” (Ward v. Beebe, 17 Abb. Pr. Rep. 1. 15 id. 373.)
The question in this case then is, whether the order of the judge to pay the amount due the assignor, to his creditor, can be defeated by an assignment of the claim, made by the defendant in the execution, before notice to him of the proceeding but after service…
2Cases cited2 opinions
- Bush v. . LathropNew York Court of Appeals · 1860
- Huntington v. PotterNew York Supreme Court · 1860
3Cited by2 opinions
- In re CloverAppellate Division of the Supreme Court of the State of New York · 1896
- Ecker v. MyerCity of New York Municipal Court · 1922