Freeman a. Munns.

peal to the Court of Appeals having been duly taken from that order, it could have no binding force or effect; its action at least was suspended, pending that appeal, and it cannot be considered as res adjudicata in the case. 3. That order could

in no event affect the rights of Mrs. Clark. McReynolds held, either as trustee of others, or in fraud of the rights of others; and in either case could give a valid title to a bona fide purchaser. (Story Eq. Juris., §§ 410-411, 1502, et seq.; Wood a. Jackson, 8 Wend., 33-36; Verplanck a. Story, 12 Johns., 536, 552; Clarke a. Davenport, 1 Bosw., 95, 141.)

V. The judgment in the foreclosure-suit of McReynolds was conclusive in favor of Mrs. Clark, and could not be subsequently attacked to her prejudice. 1. The right to foreclose a prior mortgage was determined by that judgment. 2. It was conclusive also as to every matter actually determined in the action, as well as to every matter that might have been litigated by the parties in the action. (Code, § 274; 2 Cow. Tr., 174; 1 Johns. Cas., 436-491, and note; Cooper a. Martin, 1 Dana, 23-27.) 3. Its regularity in practice, and correctness as matter of law, had been recognized by the court in denying Sherman's motion for judgment in his suit on the 9th of September, 1858, and was subsequently reaffirmed on the dismissal of Sherman's action on the 23d December, 1858. 4. The purchaser had a right to presume that the court had taken the necessary steps to investigate the rights of the parties, and rendered a proper decree. (Alvord a. Beach, 5 Abbotts' Pr., 451.)

Stephen H. Thayer, for the respondent.-I. The claimant, Allerton, has the prior lien on the surplus moneys, which are the proceeds of sale under the foreclosure of the first mortgage. He claims under the second mortgage, of which he is the present owner and holder. The adverse claimant, as present owner of the equity of redemption, makes claim under the third mortgage.

II. The lien of our second mortgage has not been destroyed or affected by McReynolds' alleged foreclosure. Our mortgage not being due at the time he commenced his suit, it was not in his power to make it due, or in any manner to terminate our lien without our consent, and no such consent is shown. The order of this court at general term, September, 1859, ab

Freeman a. Munns.

solutely and unconditionally set aside the McReynolds' judg ment and sale, and left the two prior mortgages in full force. Until that order shall be overruled by the Court of Appeals it is the law of this case, and all presumptions are in favor of its affirmance. The regularity of the proceedings by which that order was obtained, and the question of sustaining or setting it aside, will be passed upon elsewhere.

III. The adverse claimant does not stand in the position of a purchaser in good faith without notice of our rights. The grantee of McReynolds could get no better title than McReynolds had, and he, as against us, had none-and the purchaser was bound to know this, as it was matter of record. At the time Clark took the deed from McReynolds, 20th November, 1858, the mortgage now held by us was on record, unsatisfied; so was the mortgage to Freeman. It was matter of record that neither of these mortgages was due; and that the attempt of McRey nolds to foreclose them in his suit was not acquiesced in by either of the mortgagees. Sherman's motion to set aside the McReynolds' judgment was noticed 15th October for 26th October, heard on the 1st November, and the order entered and papers filed on that day. Sherman's time to appeal from the order denying his motion had not expired, nor nearly so. The sheriff's report of sale under McReynolds' decree had not been confirmed.

INGRAHAM, J.-The right of Allerton to the surplus moneys, in this case, depends mainly upon the question which arises as to the effect of the foreclosure of McReynolds, and of the sale in that case, which has been vacated by the general term. If that decision shall be sustained, I see no reason why Allerton is not entitled to these moneys. Although no reason was given for the order of the general term, I conclude that it was made on the supposition that Sherman and his assignees were not af fected by that foreclosure.

Following that decision, it is proper that the order now appealed from should be affirmed.

At the same time the referee has found and reported that the order of the general term has been appealed from. Under such circumstances it would hardly be proper to order surplus moneys to be paid over to a claimant, while there is so much doubt

McEwan a. Burgess.

as to the rights of an infant, who has appealed therefrom. If the money is now ordered to be paid, she might, in the event of the reversal of that order, be remediless. Under such circumstances, in affirming the order appealed from, an opportunity should be afforded to the parties to appeal from this order before the money is paid over. The order adopted at the special term is a proper one to be added here to the affirmance, viz.: that all proceedings be stayed for twenty days to allow the appellants here to perfect an appeal to the Court of Appeals, on filing a bond in $500, conditioned as stated in the order appealed from, in which case proceedings are stayed until decision. The order is affirmed on those conditions.

SUTHERLAND, P. J. and CLERKE, J., concurred.

MCEWAN a. BURGESS.

New York Superior Court; At Chambers, May, 1863. SUPPLEMENTARY PROCEEDINGS.-DEBTOR'S PLACE OF BUSINESS.

It is sufficient to support an order under section 292 of the Code, for an examination supplementary to judgment, that the debtor had a place of business in the county in which execution was returned, although his principal place of business is in another county.

Motion to set aside an order for the examination of a judg ment-debtor in supplementary proceedings.

Judgment had been recovered, in this action, in favor of John McEwan, plaintiff, against Nathan G. Burgess and W. James, for $196.86. On the return of an execution, unsatisfied, the plaintiff obtained, from a justice of this court, an order for the examination of Burgess on an affidavit setting forth the usual facts, and that Burgess had a place of business in New York city. The defendant, Burgess, moved to set aside the order on the ground that his place of business and residence

McEwan a. Burgess.

were in the city of Brooklyn. It was conceded, however, on the argument, that he might be found in New York part of each day in the bonded warehouses, No. 56 Broadway.

Gordon L. Ford, for the motion.

Rosevelt D. Hatch, opposed.

MONELL, J.-The facts sworn to and admitted on this motion are, that the defendant Burgess, one of the judgment-debtors, was at the time of issuing the execution and now is a resident of the city of Brooklyn, where he also had and has a place of business. That he also had a desk in and occupied a part of an office in the building No. 56 Broadway, in this city, where he usually was for almost an hour each day, and where he transacted a part of his business. His principal business, however, which was the manufacture of chemicals for photographers, was carried on in the city of Brooklyn, the office on Broadway being used for receiving orders and conducting correspondence, &c.

To give jurisdiction to the judge who issues an order for the examination of a judgment-debtor, the execution must have been issued to the sheriff of the county where the debtor resides "or has a place of business." Upon proof of the return of execution issued to the sheriff of this county unsatisfied, the creditor is entitled to an order from a justice of this court, requir ing the debtor to appear and answer concerning his property.

The only question to be determined on this motion is, whether the justice who issued the order had jurisdiction. The language of the Code is, where the debtor "resides" or "has a place of business."

The Code does not require the judge to determine which is the principal place of business, where there are two or more, but it is sufficient if it appears that he had a place of business in the county to which the execution was issued. The object of the Legislature, doubtless, was to prevent unnecessary annoyance to the judgment-debtor, who, without.some protection, might be summoned to remote and distant parts of the State, at the instance of creditors who might resort to such means to extort something from their debtors. Hence, originally, it was required that the execution should go to the sheriff of the

Levins a. Noble.

county where the debtor "resided." By an amendment which exhibits the benign intention of the Legislature, the words "or has a place of business" were added. Before the amendment, debtors residing in adjoining counties, but whose business was carried on, and greater portion of whose time was passed in this city, were ordered to appear before a county judge of the debtor's county, to the annoyance and great loss of time of the debtor.

The facts in this case show that the debtor had a place of business in this city, and that is sufficient to give the justice jurisdiction, and make it proper for him to issue the order.

The motion to discharge the order must, therefore, be denied.

LEVINS a. NOBLE.

Supreme Court, First District; General Term, November, 1862.

ORDER OF ARREST.-VACATING ON APPEAL.

On appeal from an order discharging an order of arrest granted upon affidavit setting forth a cause of action which in itself justifies an arrest, the court will presume, in the absence of the complaint, that the latter, in its statement of facts constituting the cause of action, pursues the affidavit on which the order of arrest was granted.

Where the facts constituting the cause of action and the facts authorizing the arrest are identical, the order of arrest will not be set aside upon the merits, unless the defendant clearly makes out such a case as would call on the judge at the trial either to nonsuit the plaintiff or direct a verdict for defendant.

Appeal from an order vacating an order of arrest.

The plaintiff, Peter Levins, brought this action against Solomon B. Noble, an attorney, to recover certain moneys alleged to have been placed in his hands by the plaintiff. It appeared from the complaint, that the plaintiff had employed defendant as his attorney in managing his affairs as executor of the estate of Ann Levins, deceased, and that in his character, as such attorney, he had paid to and deposited with him certain moneys,