209 A.D. 208 | N.Y. App. Div. | 1924
It appears that the defendant was doing business with Hubshman & Bro., factors, under an agreement whereby he consigned to said factors his output consisting of manufactured silks; the factors invoiced the goods to defendant’s customers, guaranteed the accounts to defendant and agreed to advance
It is likewise clear “ that a cause of action arising upon contract ” existed in favor of the defendant against the factors. The defendant says in his affidavit: “ I have no relations with H. M. Hubshman & Bro. other than evidenced by this'agreement, nor is there any other property of any kind, legal or equitable, due me from them.”
Apparently amounts were being paid from time to time to the defendant by his factors from the equity of redemption belonging to the defendant. Whether, however, any amounts were actually due and payable at the time of the levy of attachment or instead were payable in the future, is not material. In Edison Electric Co. v. Guastavino Co., No. 1 (16 App. Div. 350, 354) the court said: “ The fact that the debt is not payable at the time of the levy would not interfere with its being seized and levied upon by the sheriff upon the service of the warrant of attachment * * *.”
That such a residuary interest as this defendant had, as pledgor, against his factors, is subject to attachment, has been often held. In Warner v. Fourth National Bank (115 N. Y. 251) Judge Gray, writing for the court said: “ In this case, what was the subject of the attachment was this right of the Penn Bank to compel its pledgee to account to it as to the pledged paper, and to receive the surplus of the proceeds of collection, after satisfying the pledgee’s claim for advances. That right is a chose in action, and, in the nature of things, is intangible. It is the subject of attachment as a demand against the person, within the spirit of the language of the Code. While the debt remains undischarged the pledge belongs to the pledgee, and, while held by him, the pledgor’s title is subject to the pledgee’s lien and right of possession;
In Brownell v. Carnley (10 N. Y. Super. Ct. 9) it was said: “ It is undoubtedly true that Gordy as owner, and virtually the consignor, had an interest in the property consigned, which was liable to be attached, but it was not an interest which gave to him, or could give to his creditors, any right to divest, or interfere with, the possession of the plaintiff — unless upon the terms of refunding his advances with interest, and paying commissions and charges. Until a compliance with these terms, the interest of Gordy was nothing more than a right to demand and receive from the plaintiff the surplus proceeds of a sale,— and it was this interest, and this alone, that was liable to be attached. It is evident, however, that this contingent interest or right was not a property which in judgment of law was capable of a ‘ manual delivery; ’ and hence the sheriff, instead of taking possession of the goods, should have proceeded in the mode prescribed in § 235 of the Code.
The levy was properly made as upon intangible property (Civ. Prac. Act, § 917; Warner v. Fourth National Bank, supra; O’Brien v. Mechanics & Traders’ Fire Ins. Co., 56 N. Y. 52.)
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., and Merrell, J., concur; Dowling and McAvoy, JJ., dissent.
Order affirmed, with ten dollars costs and disbursements.
See Code Civ. Proc. § 649, subd. 3.— [Rep.
See Code Proc. § 235.— [Rep.