At the time that the order was made directing Briggs to pay over to the plaintiffs the sum of 1275.44, it appeared from his examination that he admitted that he was indebted to the judgment debtors in that amount. The order was therefore proper when made.
When the motion to punish for contempt came on to be heard, it appeared that long prior to the mating of the order for the violation of which it was sought to punish Briggs, the defendant had absolutely assigned all his interest in his claim against him. Briggs at the hearing on. the motion to punish for contempt, ■ moved, on the affidavits read in opposition to that motion, as I infer from the recitals in the order appealed from, to vacate the original order directing him to pay over. This was denied and an attachment was directed to issue.
It seems to me that the motion of Briggs to vacate the order to pay over should have been granted. The defendant having assigned the claim against Briggs long prior to the proceedings against him, on which the order was based, there was no indebtedness to the defendant on the part of Briggs. The indebtedness was to the defendant’s assignees. The order to pay over will be of no avail in any action which may be brought by the assignees of the defendant against Briggs. It will be no defense to him. Under these circumstances, Briggs having disclaimed any intentional disrespect to, or disobedience of the order of the court, directing him to pay over, it would be harsh in the extreme to enforce the original order and to impose a fine upon him.
We cannot, on this motion, try the question of the validity and good faith of the alleged assignment by the defendant. That can only be done by a receiver. For the purposes of this motion the assignment must be deemed to be valid. Barnard v. Kobbe, 54 N. Y. 516; Rodman v. Henry, 17 id. 482.
The order appealed from should be reversed, without costs, and the order directing the payment over by Briggs should be vacated, the plaintiff to be at liberty to apply for the appointment of a receiver at the chambers of the court.
Ordered accordingly.