39 How. Pr. 521 | N.Y. Sup. Ct. | 1870
The affidavit on which the attachment was issued, states in substance, that the action is brought against the defendants for the wrongful conversion
The defendants suggest that an attachment ought not to issue in an action for the detention and conversion of prop
The defendants concede that the provisions of the Code-have been changed since these decisions, -so far as to war
Van Schaick & Co., and Hallgarten & Co., insist that they are seriously injured by the operation of the attachment, that they hold certain margins on certain stocks and gold which they are carrying by direction of William Fisher & Sons, for named customers and principals of theirs at Baltimore, and that the prices and values of the securities thus held, are daily fluctuating, and that their rights will be seriously impaired if the attachment stands. Upon the papers before me, there can be no dispute about what -the course of business between the Baltimore firm and the Hew York firms has been since January 1, 1870. Cus
I am at a loss $to comprehend how, In an action commenced by attachment, which is a proceeding in rem, and where this court has no jurisdiction, whatever, over the persons of the copartners, such an accounting and statement can be had, and unless this can be done the attempt to attach any supposed interest or surplus must be abortive.
“ From the nature of partnerships, one partner cannot nave any separate right in any particular debt or article of
A work of great authority holds the rule absolutely, that partnership credits cannot be attached for the debt of one partner. (Drake on Attach., 3 ed., § 567, 570.)
And he maintains, with signal'ability, and cites numerous authorities in support of the doctrine, that the attachment of a debt due to a copartnership in an action against one of the partners, is justly distinguishable from the seizure on attachment or execution of tangible effects of the firm for the same purpose. (Drake on Attach., § 567.) The same doctrinéis maintained in Winston agt. Ewing, (1 Alabama, 129 ;) Johnson agt. King, 6 Humphreys, 233; Lyndon agt. Gorham, supra; Church agt. King, supra ; Atkins agt. Prescott, 10 N. Hamp., 1201; Thomas agt. Lask, 13 Louis., 277; Smith agt. M. Mirken, 3 Id., 319; Mobley agt. Loubat, 7 Miss., 318; Kingsley agt. Missouri Fire Ins. Co., 14 Missouri, 467.)
At section 570, Drake, upon this question, concludes thus: “ The position taken in the decisions which'have been referred to, is supported by the courts of New Hampshire, Vermont, Louisiana, Missouri, Tennessee, Indiana, Pennsylvania, Maryland and South Carolina. The contrary doctrine prevails in some states, but in the reported cases in these states we look in vain for any substantial foundation of reason or expediency upon which it can rest, or for any view calculated to shake our confidence in the conclusion that partnership credits can in no case be taken by garnishment to pay the individual debt of one member of a firm;” (and see Berry agt. Harris, 22 Maryland, 339.)
In this state the same doctrine was asserted in the Matter of Smith (16 Johns., 102.) This case was followed in Sears agt. Gearn, (7 How., 303;) Harris, J., in this
•These are the only cases in this state upon the direct question of attaching partnership . credits and -balances, although, in (16 Johns.,) goods were also attached. It was not involved at all in Brewster agt. Honigsburger, (2 Code Rep., 50,) as. shown by Harris, J., in Sears agt. Gearn, supra. Nor was the question involved directly in Abels agt. Westervelt, (15 Abb., 130,) b'ut the reasoning in this case supports the rule as contended for by Drake, and laid down in the cases decided in this state, Nor is Goll agt. Hinton, (8 Abb., 120,) in conflict with the, principle declared in the authorities already cited. There, a store of goods belonging, to the copartnership was seized on an attachment in an action against the individual partner, and on motion to restore the goods to the non-absconding partner, it was held that, inasmuch as the goods could have been seized on an execution against the individual partner, and his interest in them sold, they could be attached, and his interest, after recovery of judgment, could, in like manner, be sold, and no one ever doubted this doctrine.' Drake lays down the same rule, and is one of the authorities cited, and is mainly relied upon by the court in Goll agt. Hinton. But who will contend, for a single moment, that an execution can be levied upon the balance and credits in the hands of Van Schaick & Co., and of Hallgarten & Co. ? The case of Smith agt. Orser, (43 Barb.,) announces the same doctrine as Goll agt. Hinton, supra. In Smith agt. Orser, partnership property—tangible property—was seized by the sheriff under an attachment issued against a portion of the mem
Upon another ground, I think, the levy of attachment must be set aside and discharged. The margins and securities held by the New York brokers, belong to the customers of the Batimore firm, and the New York brokers have notice of this fact. The property belongs then to the Baltimore customers after they shall have accounted with their immediate agents, the Baltimore firm', and before that can be done, there must be an accounting between the Baltimore firm and their brokers in New York, and for the purpose of ascertaining what balance or credits, if any, have been attached, there must be an accounting between the New York brokers and the Baltimore firm, between the
In my opinion the motion must be granted. Let an order be entered setting aside the service of the attachment on Van Schaick & Co., and.Hallgarten & Co., and that the balances, credits, effects, stocks, bonds, gold and other securities in their hands to the credit of, or in account with W. Fisher & Sons, be released and discharged from the lien, effect and operation of the said attachment, and notice thereof to the same extent as though the same had never been issued or served. The attachment itself cannot be set aside.