8 How. Pr. 500 | N.Y. Sup. Ct. | 1853
An action can only be commenced by the service of a summons; such service can only be made in the
But it is provided by the 227th section, that the plaintiff may, at the time of issuing the summons, and, of course, before the action has been commenced by its service, have the property of the defendant attached, in the cases therein specified. The attachment may be served when the summons is issued. In this case, no summons had been delivered to the sheriff, and for this reason, it is contended that the attachment was unauthorized. It appears from the affidavit of the plaintiffs’ attorney, that before he obtained the warrant of attachment, he had made out a summons, and had himself sought to make service thereof, upon the defendant. The question presented for adjudication, therefore, is, whether within the meaning of the term, as used in the 227th section of the Code, the summons was “issued.”
Had it been intended that the summons should be delivered to the'sheriff, in order to warrant the attachment of the defendant’s property, under the provisions of the 227th section, it may well be supposed that the same terms would have been employed to express such intention, as are used in the 99th section. There, it is provided that for the purposes specified, the summons must be delivered to the sheriff\ while, toojustify an attachment, it is declared to be enough that the summons is “issued.” Now, as the summons may be served by another person as well as the sheriff, I do not feel authorized to construe the word “ issued,” as used in the 227th section as meaning the same thing as “ delivered to the sheriff,” in the 99th section. I think it is enough that the summons is made out and is ready for service. There can be no reason why, in an action in which an attachment is to be served, the summons should be placed in the hands of the sheriff, any more
The motion must be denied, but as the question is new, it should be without costs.