Opinion
June 29, 1910.
James A. Foley, Benjamin F. Schreiber and Patrick J. Walsh, for the appellant.
Warren McConihe, for the respondent.
The answer is insufficient as a defense to the causes of action alleged in the complaint because there is no connection shown between the money alleged to have been levied upon as the property of the plaintiff and such causes of action. That money may have represented any other transaction between the parties. Money belonging to a judgment debtor may be levied upon under an execution. (Code Civ. Proc. § 1410.) But if the defendant had in his possession money belonging to the plaintiff which was thus levied upon that could not affect the cause of action against defendant for services rendered and material furnished or on an account stated. He still remained indebted on those causes of action.
Assuming, however, that the defendant intended to allege that he paid to the sheriff on the execution against plaintiff the amount which defendant admits having owed the plaintiff on the causes of action alleged in the complaint such payment was voluntary. It is well settled that a chose in action is not subject to the lien of an execution and is incapable of levy or seizure by the sheriff. ( McNeeley v. Welz, 166 N.Y. 124, 128; Clark v. Warren, 7 Lans. 180; Clarke v. Goodridge, 41 N.Y. 210; Duffy v. Dawson, 2 Misc. Rep. 403.) Defendant simply owed a debt to the plaintiff and could not extinguish that debt by voluntarily paying some other debt which plaintiff owed. The sheriff could not levy on the debt of defendant to plaintiff and defendant had no more right to voluntarily pay the sheriff than he had to pay the judgment creditor directly.
The defendant cites the case of Genovese v. Matelli ( 8 Misc. Rep. 493) which supports his contention. That case stands by itself in holding that a debtor may discharge his indebtedness by paying an execution against his creditor and is opposed to the principle of the cases above mentioned, and many others which might be mentioned.
The court was, therefore, right in sustaining the demurrer and the judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.