Carr v. Corcoran

60 N.Y.S. 763 | N.Y. App. Div. | 1899

Van Brunt, P. J. :

This action was brought to recover an alleged indebtedness due from the defendant to the plaintiff. The defendant being a nonresident of - the State, an attachment was procured and served upon one Joshua Rhodes, a resident of Pittsburgh, Pennsylvania, who was, at the time of such service, temporarily sojourning at the Fifth. Avenue Hotel, in the city of Héw York. The plaintiff is a resident of Zanesville, Ohio ; the defendant is a resident of Pittsburgh, Pennsylvania, and the alleged debtor of the defendant is also a resident of Pittsburgh, as above stated. A motion was made to vacate the attempted levy upon the ground that the plaintiff and defendant, and the alleged debtor of the defendant, being all non-residents, no levy could be upheld. The court granted the motion, and from the order thereupon entered this appeal is taken.

It is tirged upon the part of the appellant that the attachment was served in the manner-prescribed by subdivision 3 of section 649 of the Code of Civil Procedure; and if the strict language of the Code is to prevail, it undoubtedly was. But this language is to be construed in the light of the nature of the process____The proceeding by attachment is a proceeding in rem, and the rfs must be seized or attached, or at least be within the jurisdiction, in order to confer jurisdiction upon the court. An attachment can only operate upon property which it can affect; that is, which is situated Avithin the territory through which the attachment runs; and, hence, when the Code says, “ Or if it consists of a demand other than as specified in the last subdivision, with the person against whom it exists,” it must necessarily mean that the circumstances must be- such that the situs of the demand is within the territorial limits of the attachment. It is well settled that the situs of debts and obligations is usually at the domicile of the creditor. But the attachment laws of our and other States have changed this rule and recognize the right of a creditor of a non-resident to attach a debt or credit owing or due to him by a person within the jurisdiction where the attachment issues, and to this extent the principle has been sanctioned that the laws of a State, for the purposes of attachment proceedings, may fix the situs of a debt at the domicile of the debtor. And the rule is laid down that no court can acquire jurisdiction in attachment proceedings unless the res is either actually or constructively within the jurisdiction. (Douglass v. Phenix Ins. Co., 138 N. Y. 209.)

Applying these rules to the case at bar,it is clear that the situs of this debt — the res—• was in Pennsylvania and hence, the debt could not be attached here. Indeed it is difficult to see how it would bé possible for the courts of this State to enforce an attachment of this description. The debtor being a non-resident and the creditor beitig a non-resident, there would be nothing for the- court to take hold of.

We think, therefore, that the order appealed from should bó affirmed, with ten dollars costs and disbursements.

Babrett, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.