60 N.Y.S. 719 | N.Y. App. Div. | 1899
This is an appeal from an order directing the payment by Hugh J. Grant, as receiver of the St. Nicholas Bank, of a sum of money to the sheriff of the county of Now York, in aid of and to apply upon an execution in his hands in an action wherein a warrant of attachment had been granted in favor of the Bubber Beclaiming Company, plaintiff, against the American Casualty and Security Company, defendant. It' appears from the papers used upon the •motion that the casualty company on or about November 24, 1893, had a deposit in the St. Nicholas Bank amounting, to $2,342.93; that about that time a warrant of attachment was issued in an action brought by the rubber company against the casualty company, and
The receiver (the appellant) assails the order upon the ground, among others, that the court in issuing the warrant of attachment did not acquire jurisdiction todo so, and, therefore, that the warrant and all proceedings taken under it were null and void. This is the main question to be considered.
It is conceded that the rubber company and the casualty company, the parties to the action in which the warrant of attachment was issued, were foreign corporations, and, 'therefore, the right to maintain the action was governed by section 1780 of the Code of Civil Procedure. This section, among other things, provides that “An action against a foreign corporation may be maintained by another ■ foreign corporation or. by a non-resident in one of the following cases .only : 1. Where the action is brought to recover damages for the. breach of a contract made within the State, or relating to property situated within the State at the time of the making thereof.” To entitle the plaintiff in the action .to a warrant of attachment he was obliged to comply with section 636 of the Code, which provides that “he must show by affidavit to the satisfaction of the judge granting the same ” that a cause of action exists against the defendant for, “ 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. ,3. An injury to person -or property in consequence of negligence, fraud or other wrongful act.” (§ 635.) And where the claim is against a
It is, therefore, seen that the affidavit in and of itself did not show that a cause of action existed in favor of the plaintiff against the defendant. It fails to state the material facts required by the statute, namely, that the contract for the breach of which damages were claimed was made within this State or related to property situated within this State at the time of the making thereof. The plaintiff was bound to allege and prove the existence of these facts in order to maintain an action against the defendant, and to entitle him to obtain a warrant of attachment he was bound to establish the same by affidavit. The court could acquire jurisdiction to issue a warrant of attachment against the property of the defendant, a foreign corporation, in no other way. It has been held that owing to the harshness of the remedy by attachment the section of the Code referred to should be construed in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom the warrant may be employed. (Penoyar v. Kelsey, 150 N. Y. 80.)
The respondent, in answer to the criticism thus made uj)on the affidavit, claims that the facts necessary to give the court jurisdiction were set out in the verified complaint, which for the purposes of granting the warrant could be treated as an affidavit. It is undoubtedly true that a verified complaint, can, for the purpose suggested, bé treated as an affidavit, but there is nothing in this record to show that the verified complaint was before or considered by the judge at the time the warrant was issued. It was not attached to the affidavit nor is it referred to therein, except by the. statement that the allegations of the complaint are true. The warrant itself specifically recites that the facts referred to' were made to appear to the satisfaction of the judge granting thé warrant by “ affidavit,” and that the “ affidavit ” shows that the plaintiff is entitled to .recover. No reference is made in the warrant to the complaint, and it cannot be presumed, in the absence of proof in that respect, that it was presented to and considered by the judge .who granted the warrant. The affidavit as we have seen did not show the existence of a cause of action, and unless the complaint was considered jurisdiction was never obtained to issue the warrant. There is no proof
We are also of the opinion that the order must be reversed for another reason, even if it be conceded that the warrant of attachment was properly issued. To obtain a valid lien under a warrant of attachment upon property incapable of' manual delivery, as this property was, it is necessary, under section 649, subdivision 3, of the Code of Civil Procedure, that a certified copy of the warrant and a notice showing the 'property attached he delivered to and left with the person holding the same. (Courtney v. Eighth Ward Bank, 154 N. Y. 688.) Neither of' these requirements can be dispensed with. The person upon whom the' warrant is served is entitled to have a copy of the original warrant duly certified by the sheriff or other officer having the custody of the original, so that he may have official information as to the contents of the original warrant, which he may rely upon and use for his protection as occasion may require. (Courtney v. Eighth Ward Bank, supra.) There is no satisfactory evidence in this record from which it can be found that a certified copy of the warrant and the notice were ever served in the manner pointed out in the statute. Substantially the whole proof on that subject consists of the testimony given by the witness Wood, who claims that he was present when the officer made the levy. He testified that he went to the bank and caw two of its officers, and that one Fox, the deputy sheriff, gave them a copy of the warrant and showed them the original, and announced that lie levied upon the property of the defendant there. He also testified in response to the question, “ Was the copy so delivered to the bank officers- certified.? ” “ My memory, is that it was.” • But he did not state by whom it was certified, -or whether the notice required by the statute was served with it. The testimony of this witness is unsatisfactory and is insufficient to show a, levy .in the manner required by the statute, and without such proof the court should have declared the attempted levy to be void and of no effect.
We are also -of the opinion that the St. Nicholas Bank had a prior lien upon tiie money directed to be turned over to the sheriff. A banker’s lien attaches in favor of a bank upon securities and moneys
For these reasons the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., Barrett and Rumsey, JJ., concurred ; Ingraham, J., concurred on last ground.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.