[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 208 It is undisputed that there was a cause of action against the defendant, and that at the time of the commencement of the action, the plaintiff was the owner and holder of it, and that the judgment which has been recovered in the action is right in amount.
The sole defence relied on here, is one, which, if it exists, has arisen since the commencement of the action. It is, that a creditor of the plaintiff, having obtained a judgment against it, proceedings supplementary to the execution issued thereon were had in pursuance of section 294 of the Code of Procedure, an order was made restraining the defendant from paying the debt, and that a receiver was duly appointed by the court, and he having properly qualified, it is alleged that the debt of the defendant to the plaintiff was thereby vested in that receiver. It is not alleged or found by the referee that the receiver has ever taken any steps to possess himself of the cause of action, or to demand the debt of the defendant, or in any manner to interfere in this action, or that any payment has been made by the defendant to the receiver, or that in any way further than is here stated has the defendant become liable to pay to him. Such a defence cannot prevail.
If it should be conceded that the appointment of the receiver was valid, it did not defeat the action, nor did the *Page 209 order restraining the defendant from paying the debt to the plaintiff stay proceedings in it. There was no difficulty in the way of the defendant, whenever he should concede that he was indebted, taking the order of the court for such a payment of the amount as would protect him from twice paying it. At the time the answer was served in this action, the Code of Procedure had, in its 122d section, provided a mode of action ample for the protection of the defendant. Had he then been willing to admit what the judgment establishes, that he was indebted to the plaintiff for the amount fixed by it, he could have then had all the relief needed by him. But he chose to litigate, and upon the facts established by the trial he has no defence against the claim of the plaintiff. He may yet, when the remittitur of this court shall go to the court below, upon motion to that court, have such order for his protection in paying the amount of the judgment as the facts shown will warrant.
The judgment appealed from should be affirmed with costs to the respondent.
All the judges concurring, judgment affirmed.