Glasband

Defendant Sun State Music Distributors, Inc. (“Sun State”) appeals from a summary judgment awarding plaintiff damages in the sum of $14,428.59.

One Cherubin owed plaintiff about $16,500 on a judgment which plaintiff had obtained against Cherubin. A writ of execution had issued on that judgment and on October 15, 1965, plaintiff caused the writ to be levied on the furniture, fixtures, equipment and stock in trade of Cherubin. 1 Defendant Sun State, on November 16, filed two third party claims, claiming that it was the owner of the furniture, fixtures, equipment, stock in trade and of 70 percent of the proceeds of the stock in trade, having allegedly placed it with Cherubin on consignment. Plaintiff was unable to bond against defendant's claims and the property was therefore released to Cherubin. On November 29, 1965, there was a hearing on the validity of defendant’s third party claims. It was determined that the claims were invalid. The judgment on the third party claim was entered December 1, 1965. On December 9 Cherubin filed a petition for bankruptcy in the United States District Court. The assets on which plaintiff had levied were sufficient to satisfy the balance of the…