Reischmann Co. v. Mulvihill

The point raised on this appeal is that plaintiff is entitled to $25 for cartage furnished, at the request or with the approval of defendant, a marshal, in aid of a levy under an execution, and that the judgment debtor approved the charge and voluntarily ■ made the payment to the defendant, who refused to turn it over to the plaintiff.

The defense—somewhat confused by disingenuous calculations made by the defendant—is merely that the judgment debtor makes a claim upon the defendant for the same amount. Under such circumstances, defendant might appropriately, under section 187 of the Municipal Court Act (Laws 1902, c. 580), have procured an order permitting him to pay the money into court. He has, however, preferred to test the issues on the merits, and, as these are plainly against him, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event'.

• Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.