86 N.Y.S. 346 | N.Y. App. Div. | 1904
Lead Opinion
• The appeal in this case presents but a single point. The action was br'ought by the plaintiff, as assignee of Thomas "W. Robertson, and Thomas J. Dunn, the then sheriff of the county of Few York, under section 67Y of the Code of Civil Procedure, in aid of an attachment, to recover upon three promissory notes, only one of which is presently enforcible, as the Statute of Limitations has run against two. The point which the appeal presents relates to the validity of a levy claimed to have been made under the attachment, it being claimed that the levy was invalid and ineffectual to secure any lien upon the promissory note in question or any of its proceeds.
It is averred in the complaint that the note claimed to have been levied upon was, at the time of such levy, in the possession of the Few York Produce Exchange Safe Deposit and Storage Company, which had arid claimed a lien thereon at the time of the levy. Upon this subject the complaint avers: “ That on October 3, 1894, in the above-mentioned action * * * a warrant of attachment was duly issued out of this court whereby the- then sheriff of the county of Few York was directed to attach and keep all. the property of said Ongley Electric Company, within the county of Few York, and that thereunder the then sheriff attached the said promissory notes hereinafter mentioned by leaving a certified copy of said warrant, and a notice showing the property attached with the said Few York Produce Exchange Safe Deposit and Storage Company within the county of Few York, and that thereafter the said Few York Produce Exchange Safe Deposit and Storage Company furnished a certificate to the then sheriff of the county of Few York stating that it had at the time of the levy under the warrant as aforesaid a lien- for unpaid storage on the property of the said Ongley Electric Company so deposited as aforesaid, a part of which was the promissory notes hereinafter mentioned, and that by the said levy the said sheriff acquired the title to the said promissory notes subject to the lien as aforesaid, and that the defendants herein had notice of the said levy.” The averment of the complaint as to the levy of the attachment was hot denied by the answer;
' The defendants seek to distinguish Warner v. Fourth National Bank (supra) upon the ground that the levy of attachment, where there is an intervening lien, must be upon the intangible interests, as such, remaining in the defendants, the owners of the note; that in fact such a levy is not upon the note, but upon the intangible interest ; that the levy in the present case is not upon such intangible interest because in terms it is stated to be upon promissory notes' and nothing else. The answer to this claim is that the levy in that case was maide in precisely the same form and manner as was the levy in this. case. The naming of the thing levied upon is not controlling. The effect of the act itself attaches the lien of the attach
McLaughlin and Laüghlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.
Dissenting Opinion
• I dissent from the reversal of this judgment. There was no evidence that a notice was served by the sheriff of New York upon the New York Produce Exchange Safe Deposit and Storage Company, which complied with subdivision 3 óf section 649 of the Code of Civil Procedure, and the right of the plaintiff to recover depends upon the allegation of the complaint that “ thereunder the then sheriff attached the said promissory notes hereinafter mentioned by leaving a certified copy of said warrant and a notice showing the property attached with the said New York Produce Exchange Safe Deposit and Storage Company within the county of New York.” This allegation, not being denied, stands admitted.
To obtain a valid levy under the warrant of attachment under subdivision 3 of section 649 of the Code, the sheriff must serve a certified copy of the warrant and a notice showing the property attached upon the person holding the same. The property claimed to have been attached was the interest of the defendant in the action in which the warrant of attachment had been issued in the property in the possession of the deposit and storage company. And to constitute a valid levy the notice must specify the property upon which the sheriff seeks to levy. The allegation of this complaint follows the language of the Code; but the Code requires that the notice should show what specific property was attached, and this allegation does not state what property the sheriff sought to attach. To make a .valid levy the notice must specify the property, and it is not alleged that the notice served with the warrant of attachment did
In Simpson v. Jersey City Contracting Co. (47 App. Div. 17) it is stated in the opinion that the sheriff attempted to levy upon the stock held by the trust company by serving a notice in the form prescribed by subdivision 3 of section 649 of the Code of Civil Procedure. On turning to the record in that case it appears that in the affidavit upon which the motion to vacate the levy was made it was alleged that “ such attempted levy has been made, as I am informed and verily believe, by serving upon the said Produce Exchange Trust Company or some of its officers a notice in the form subscribed
In order to sustain this action the plaintiff must prove that the notice served with the warrant of attachment was the notice prescribed by subdivision 3 of section 649 of the Code, and I do not think this allegation of the complaint is sufficient to show that the notice that was served did describe the property that was attached, namely, the interest of the defendant in the action in which the attachment was issued in the property in possession of the deposit' and storage company.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
Sic.