Drake v. Goodridge

| N.Y. Sup. Ct. | Jan 4, 1869

Lead Opinion

Clerke, P. J.

The notice, served by the sheriff, under the attachment in the first of these actions, on the ¡National ¡Bank of the Republic, is of the same general description, and nearly in the same words, as the notice served on the Nassau National Bank, in Greenleaf v. Mumford, (19 Abb. 469,) in which I held the notice was sufficient. I deemed it unnecessary and impracticable, in many cases, to specify the precise nature and amount of the property. I should have no hesitation in reiterating this holding, in the present case, if, in the'- review of my judgment' by the general term, in that case, this was one of the grounds of reversal. The opinion of the general term, however, expressly states that the main question in the case was not as to the regularity or sufficiency of the service of the attachment; but the main question was, do the facts found show that there was any debt, fund or thing which was or could be attached or levied on; and the opinion proceeds to maintain that there was no debt, fund or thing which could have been attached or levied upon—a question, by the way, if I recollect rightly, not raised before me at the special term.

[New York General Term, January 4, 1869.

I think, therefore, the precise question presented in the case now before us, and which I decided specifically in Greenleaf v. Mumford, was not considered; and my ruling in relation to it has not been overruled by the general term; It is unnecessary to repeat the reasons upon which that ruling was founded. They are still as conclusive, to my mind, as they were when I wrote the opinion to which I have referred.

The orders should be reversed, with costs.

Geo. G. Barnard, J., concurred.

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Dissenting Opinion

Sutherland, J.

I dissent.- I am clearly of the opinion that both order's should be affirmed.

Orders reversed.

Clerke, Sutherland and Geo. G. Barnard, Justices.]