28 How. Pr. 110 | N.Y. Sup. Ct. | 1864
By the court, The plaintiff filed a notice of the pendency of this action, and this court at special term, on motion, directed it to be taken from the files. From this order the plaintiff appeals.
The action is for the recovery of money, and an attachment was issued therein against the defendant, as a non-resident debtor. The notice describes the premises which the plaintiff seeks to have subjected to his attachment, and includes a large amount of real estate not seized by the sheriff under the warrant of attachment. It was admitted on the argument that the sheriff had returned upon the said warrant the real estate which he had levied upon by a specific description. The right to file such a notice is expressly given by section 132 of the Code, whenever a warrant of attachment has been issued intended to affect real estate, but the notice must describe the property affected thereby,
In the present instance the plaintiff attempts to affect real estate belonging to the defendant, by filing a notice of the pendency of the action, and including therein premises not seized by the sheriff under the attachment. In my opinion, the notice affects only those lands which the sheriff has attached, and is inoperative as to all other lands included therein. The notice may be oppressive in its operation upon the defendant, and obstruct him in the enjoyment of his property, upon which no levy has been made under the attachment. Such a contingency ought to be prevented. The plaintiff’s attorneys were wrong, perhaps unintentionally, in including property in the notice which had not been levied on l;y the sheriff
The order appealed from should be modified so as to amend the notice by striking therefrom so much of the premises therein described as have not been levied on under the warrant of attachment, according to the sheriff’s return on the said warrant, without costs.