11 N.Y. 52 | NY | 1874
The plaintiff was turned out of court and his complaint dismissed solely upon the ground that the attachments had never been levied upon the claim in contention, and that for want of such levy the plaintiff had no title to the same, and was not entitled to maintain an action for its recovery. Two other grounds were suggested by the defendant in his application to dismiss the complaint, but neither were considered or passed upon by the court, and neither can be said, even if decided adversely to the plaintiff upon the case as made upon the trial, to be conclusive upon the right of the plaintiff. The objections are capable of being obviated and overcome by other and further evidence, and that being the case, the defendant cannot have the benefit of them upon this appeal. It is only when the record discloses an insuperable difficulty to a recovery by the plaintiff, that a judgment against him will be sustained, if the court below erred in the decision actually given.
The only question before us is whether the notice left with the defendant at the time of leaving the certified copy of the attachment, was a sufficient compliance with section 235 of the Code, and a valid attachment of the claim now sued upon. We are not seriously embarrassed by authority, and the
A warrant of attachment, under the Code, directs the sheriff to attach and safely keep all the property of the defendant within his county; and this includes not only tangible property, real and personal, but things in action and evidences of debt. (Code, §§ 231, 462, 463, 464.) A levy upon rights and shares in the stock of associations or corporations, and debts and other property incapable of manual delivery, cannot be effected by aü actual seizure, as in case of movable chattels, but such property may be attached and held
The proceeding under the Revised Statutes was for the benefit of all the creditors of the individual proceeded against, while the provisional remedy, under the Code, by attachment, is for the benefit of a particular creditor, who may seize only so much of the property of the debtor as will be sufficient to satisfy the claim. Instead, therefore, of a general notice, to bind and charge all the property of the debtor, a notice to the individual owning the debt or holding the property intended to be levied upon is authorized. The sheriff by his action and the notice he gives, acquires no actual dominion over the property. It is as much beyond his personal control as before the levy; and there is no particular magic in the act of giving the notice that affects the status or the rights of any one, save as prescribed by statute, or changes the character or actual condition or possession of the property. The notice is but an act of caution to the individual upon whom it is served, intended and operating solely to prevent his paying the debt or delivering the property to
If a case could be supposed in which a party could be misled and injured, by the generally of a notice of this kind, it might be different. To require a particular description of the rights, debts and choses in action, which would identify and distinguish them from all others of a like kind, would be to render the remedy by attachment, in a great majority of cases, abortive, as a process against property of this character. Neither the pursuing creditor, nor the
In my judgment, the plain design of the provision under consideration, and the full accomplishment of every purpose that could have been intended by a notice, is fully answered by a notice like that before us, unless as in Drake v. Good-ridge, it is designed to levy only on a particular class or part of the property and exclude the residue. The reasoning of Judge Clerk upon this particular question, without reference to the facts of that case, in Greenleaf v. Mumford (19 Abb., 469), is entirely satisfactory to me, and I think conclusive. The danger and difficulty of undertaking to specify and describe the particular debt or chose in action, or the particular interest intended to be attached, is exemplified in Drake v. Goodridge.
Section 236, does not qualify section 235, or aid us in determining what will be a sufficient showing of the property levied on by the notice required by the latter section. It does enable the sheriff, in his discretion, to apply for a certificate of the particular property of the debtor, in the pos
The judgment should be reversed and a new trial granted.
All concur.
Judgment reversed.