Clarke v. . Goodridge

| NY | Sep 27, 1869

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Drake Co. having commenced an action against Goodridge Co., issued an attachment to the sheriff of the city and county of New York, against the property of that firm. The sheriff served this attachment upon the National Bank of the Republic, by delivering them a copy of the attachment accompanied by a notice, that all property, effects, rights, debts and credits of the said Goodridge in their possession or under their control, would be liable to said attachment, and particularly, that he attached the bank account and debt due from the bank to Goodridge. At this time, Goodridge had borrowed of the bank a certain sum of money, and had left with it certain certificates of stock as security for the indebtedness, which remained with the bank, the transaction being unclosed. It is not expressly stated, but I infer from the papers, that at this time there was no more value in the stocks pledged than would pay the bank debt. Subsequently, the stocks appreciated in value, were sold by the bank, and a balance of $4,800 remained to the credit of Goodridge. If the proceeding above taken constituted a levy upon Groodridge's interest in the securities, then the order appealed from must be affirmed. If not, then the money belongs to the receiver appointed in the suit of Clarke, and the order must be reversed. A failure to refer, in the notice to the bank, to the specific securities, or to the transaction with the bank, in such manner as to identify what it was intended to levy upon, is the precise ground of the objection to the attachment.

The transaction between Goodridge and the bank was a simple pledge of certain certificates of stock held by the former. Although there may have been default in Goodridge in paying his debt, the general property in the shares remained in him. His interest could only be divested by judicial proceedings on the part of the bank, or by a sale, upon notice to him of the time and place of sale. (Story Bail. § 287; 2 Kent Com., 557, 581 and fol.) Neither of these proceedings were taken, until long after the levy in question.

The statute contemplates a levy by the sheriff upon two kinds of property: 1. Tangible property, as lands, goods and chattels. 2. Property incapable of manual delivery, such as rights or shares in the stock of an incorporation, or other property incapable of manual delivery to the sheriff. (Code, §§ 232 to 235.) The first class is to be levied upon by the sheriff and taken into his possession, in like manner as under an execution. In executing the attachment upon the other kind of property, the sheriff is directed to leave a certified copy of the warrant of attachment with the head or agent of the corporation or with the individual holding such property, "with a notice showing the property levied on." (§ 235.) In Greenleaf v. Abbott (19 Abb. R.), it was held, that a general notice that the sheriff levied on the property, rights of action, c., in the hands of the party, was a compliance with the provision of this section. This construction does away with the whole effect of the last claim of section 235, which requires that a notice should be given, showing the property levied on. Those words were intended to perform an office, and by them, the levy is confined to the items specified in the notice; as in the present case, where the bank account and debts due from the bank to Goodridge are specified. Such was the holding of the Supreme Court of the city of New York in Wilson v. Duncan (11 Abb. R., 3), and in Kuhlman v. Orser (5 Dyer, 242). In my opinion these decisions are right. I agree also with the Superior Court in holding that the expression, "property incapable of manual delivery to the sheriff," is applicable to property not only which, in its nature, is thus incapable of manual delivery, but also to that which has become so from its peculiar position, as where it is under pledge or consignment, with advances made upon the property. The property here was subject to both these disabilities. It could not be levied upon bodily, because it consisted of choses in action, and for the further reason that the pledgee was entitled to its possession. The property should have been specified in the notice of the sheriff, and the interest of the debtors therein, referred to with reasonable certainty.

Upon the merits, the order should be reversed with costs.

GROVER also read an opinion for reversal.

DANIELS read an opinion for affirmance.

For reversal, HUNT, Ch. J., GROVER, MASON, WOODRUFF and LOTT, JJ.

For affirmance, DANIELS and JAMES, JJ.

Order reversed.