People's Bank v. Mechanics' National Bank of Newark

62 How. Pr. 422 | N.Y. Sup. Ct. | 1882

Lawrence, J.

— It was held by the" court of appeals, in the case of Robinson agt. The National Bank of Newberne (81 N. Y., 385 ; S. C., 59 How., 218), that the supreme court of this state has jurisdiction of an action ex contractu, brought1 by a citizen of this state against a national bank located in another state, and that the provisions of the national banking act (U. S. R. S., sec. 5242), prohibiting the issuing of an attachment, injunction or execution against such an association, or its property before final judgment, applies only to an association which has become insolvent, or to one about to become so, as specified in the preceding part of the section. In that case the cases of the Central National Bank agt. The Richland National Bank (52 How. Pr., 136 and 131) and of Rhoner agt. The First National Bank (14 Hun, 126) were cited upon the brief of the appellant’s counsel, and must have been considered by the court, and in so far as those cases lay down a doctrine which differs from that enunciated in Robinson agt. The National Bank of Newbern they must yield to the latter case. In this case it is sought to sustain the jurisdiction of the court and to bring the case within the doctrine of Robinson agt. The National Bank of Newberne (supra), by denying the insolvency of the defendant, and it is claimed that the question should be disposed of by a reference. I regard it as a sufficient answer to this point to say that the affidavits submitted ou the part of plaintiffs do not meet or overcome, in my judgment, the very positive proofs of the insolvency of the defendant, which are presented on behalf of the receiver, and therefore a reference is unnecessary. It is further urged that as the receiver appears only •specially for the purposes of this motion, and has not submitted himself generally to the jurisdiction of the court, his application ought not to be entertained. But this position cannot be maintained. Under the old Code it was held that a subsequent attaching creditor could not move to set aside a prior attachment (See see. 241 of the Code of Procedure ; Ketchum agt. Ketchum, 1 Abbott [N. S.], 151). But under section 682 of the Code of Civil Procedure, “ the defendant or a person who has acquired a lien upon or interest in his property after it was attached, may, at any time before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief together or in the alternative.” The receiver of the defendant in this case certainly brings himself within the language of this section. He has acquired “ a lien upon or interest in the defendant’s property ” since the attachment was issued. There is nothing in the section which requires the applicant to become a party to the action. And it is everyday practice to allow such motions to be made without imposing upon the applicant the condition that he shall ask to be made a party to the action in which the attachment was granted. Furthermore, it is quité apparent that this section was intended to put subsequent creditors or parties subsequently acquiring a lien upon or interest in the defendant’s property upon the same footing as that occupied by the defendant under the old Code (See Mr. Throof's note to see. 682 of the Code of Civil Procedure). And under the- old Code, it was held that the defendant was entitled to make a motion to set aside the attachment without putting in a general appearance in the action (Manice agt. Gould, 1 Abbott's Pr. [N. S.], 255). The cases of Tratyy agt. The First National Bank of Selma (37 N. Y., 524) and Allen agt. The Scandinavian National Bank (46 How. Pr., 71) were decided prior to the passage of the Code of Civil Procedure, and therefore have no bearing on this case. I am therefore of the opinion that the motion to vacate the attachment should be granted, but under the circumstances, without costs.

Note. —In Chapman agt. Same; The National Shoe and Leather Bank agt. Same; Hillman agt. Same; Clark agt. Same; West Side Bank agt. Same; Corn Exchange Bank agt. Same, the motion-to vacate attachment was granted, without costs, for the reasons stated in the above opinion. [Ed.