Lancaster v. Turner

83 N.Y.S. 572 | N.Y. Sup. Ct. | 1903

Blanchard, J.

This is an application made by defendants to vacate a levy made by the sheriff of the county of New York upon a New Jersey corporation, called the Cuba Company, upon two grounds, to wit: First. That the property sought to be attached consists of a debt due to defendants, nonresidents of this State, by a foreign corporation, and, therefore, not the subject of attachment here; and, second, that the notice of the attachment is insufficient. As to the first of the grounds urged, it may be said that, as a general proposition, it is the law that the debt of a foreign corporation, due to a nonresident, cannot be attached in this State. A number of authorities on this point are called to my attention. The leading case is that of Douglass v. Phenix Ins. Co., 138 N. Y. 209. This decision proceeded upon the principle that in attachment proceedings the res must be within the jurisdiction of the court issuing the process in order to confer jurisdiction. And it was stated that, as a general rule, the situs of a debt was at the domicile of the creditor, or, for the purposes of attachment proceedings, the domicile of the debtor may fix the situs of the debt.

These, however, were general rules laid down apparently in the absence of proof as to the actual situs of the debt. In the case at bar the plaintiff’s proof is that the debt due to defendants was the result of a contract made in the State of Hew York, and by the terms thereof payable in this State. In the face of such proof I am unwilling to direct the release of the levy, upon the ground that the situs of the debt sought to be reached is outside of the State of Hew York. As to the second ground urged, i. e., the insufficiency of the notice of attachment served on the Cuba Company, I am of the opinion that it was sufficient. The notice was attached to a copy of the warrant, and stated that the sheriff was commanded to attach property, etc., “ of the defendant Thomas E. Spotswood and ano., within named,” and by reference to the warrant attached, which undoubtedly was what was referred to by the use of the words “within named,” the identity of the individuals whose property was sought to be reached was made evident beyond a doubt.

I conclude, therefore, the motion should be denied, with ten dollars costs to plaintiff to abide the event.

Motion denied, with ten dollars costs to plaintiff to abide event.