Qualtop Beverages, Inc. v. Papadakis

Order reversed on the law, with costs, and motion to terminate proceeding denied and order granted authorizing the Comptroller to pay the fund in question to the judgment creditor, without costs. Memorandum: Under section 808 of the Civil Practice Act the assignee had the burden of establishing the bona fides of the assignment of the fund in question to him, in other words that the transfer was made in payment of a bona fide debt in good faith and without notice. This burden he failed to carry. Under these circumstances the fund should have been awarded to the judgment creditor and an order should have been made permitting the State Comptroller to pay the fund to it. All concur except Crosby, J., who dissents and votes for affirmance on the ground that the claimant was within the protection of section 808, subdivision 4, of the Civil Practice Act. (The order directs the State Comptroller to pay over to the judgment debtor’s assignee a fund held by the State officers pursuant to section *939127 of the Alcoholic Beverage Control Law.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.