72 N.Y.S. 658 | N.Y. App. Div. | 1901
The appellant contends that the levy made under the attachment in favor of the defendant Katz .was invalid for the reason that both the debtor and creditor were foreign corporations, and that, therefore, no levy under an attachment granted by the courts of this State is authorized. Reliance is placed in support of this contention upon the case of Carr v. Corcoran (44 App. Div. 97), but in that case both the debtor and the creditor were non-residents, the res was not within the jurisdiction of the court, and under such circumstances it was held 'that a levy was unauthorized.
That case recognizes, however, that where the res, the tiling to be levied upon, is within the jurisdiction of the court, it may be attached, and in Simpson v. Jersey City Contracting Co. (165 N. Y. 193) it was held that the stock of a foreign corporation belonging to a non-resident but in the possession of a resident of this State was subject to levy under an attachment. In the present case the defendant Katz is a resident of this State, and the money represented by the debt is also within the jurisdiction of this court; consequently, within both of the above authorities the attachment and levy were authorized. Aside from these considerations it appears that the American Bicycle Company had an office, was engaged in the transaction of business within the State, and the debt which was the subject of the attachment was incurred by it in the course of such business. As to a corporation so situated, a different rule prevails from that which obtains where the foreign corporation does no business within the jurisdiction of the court. The latter is to be regarded as a non-resident exclusively, and the rule announced in Carr v. Corcoran (supra) and in Douglass v. Phenix Ins. Co.
It is further contended that when the money was paid over to the chamberlain it was in custodia legis, and, therefore, not the subject of a levy. But it was so paid in for the very purpose of furnishing security for the payment of the debt for which the attachment issued, and it was in custody to meet this claim. Under such circumstances it is subject to levy. (Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145 ; Wehle v. Conner, 83 id. 231.)
No sound distinction can be drawn between money deposited voluntarily by the attachment debtor in the custody of the law and money placed there by order of the court to meet the debt which the attachment represents; both are alike subject to levy thereunder.
The extra allowances seem to have been proper in amount and are authorized by law.
It follows that the judgment and orders appealed from should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment and orders affirmed, with costs.