Faraci v. Maller

138 N.Y.S. 961 | N.Y. App. Div. | 1912

Woodward, J.:

This action was brought to foreclose a chattel mortgage given by Osias Maller to the Universal Cork Paper Company, and by that company assigned to the plaintiff. The complaint sets forth a cause of action for foreclosure of this mortgage, and upon the summons and complaint and certain affidavits, a warrant was issued to the sheriff to seize the chattel mentioned in the complaint and to hold the same safely to abide the final j udgment. Section 207 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) provides that where the action is brought in the Supreme Court, “if the plaintiff is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action.” It also provides that the “provisions of title third of chapter seven of the Code of Civil Procedure apply to such, warrant, and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article.”

We apprehend that the first part of the above section of the Lien Law practically adds a new case in which a warrant of attachment may be issued under the provisions of section 635 of the Code of 'Civil Procedure, and that sections 636 to and including 681 of the Code of Civil Procedure are applicable to the procuring of the warrant of seizure and to the subsequent disposition of the matter. Construing section 636 of the Code of Civil Procedure, the court in Penoyar v. Kelsey (150 N. Y. 77, 80) say: “ Owing to the statutory origin and harsh nature of this remedy the section in question should be construed, in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be employed,” and so we are constrained to hold that in the present instance, the plaintiff having failed to show matters required by section 636 of the Code of Civil Procedure, was not entitled to the warrant of seizure, and that the learned court at Special Tórm was fully justified in setting aside the warrant. The mere fact that the plaintiff had a chattel mortgage and that he had brought his action in the Supreme Court for its foreclosure, after default, is not sufficient to give him a right to the harsh remedy of a warrant of seizure or attachment.

The order appealed from should be affirmed, with ten dollars costs and disbursements'.

Jbnics, P. J., Thomas, Carr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.