61 N.Y.S. 1033 | N.Y. App. Div. | 1900
This action was commenced to recover $2,000 for professional' services rendered by the plaintiffs to the defendant, a corporation organized under the laws of the State of New Jersey. An attachment was obtained, and' acting under it the sheriff has attempted to levy upon 3,220 shares of the capital stock of the New Jersey and Pennsylvania Telephone Company, a foreign corporation' organized under the laws of the State of New Jersey, the property of this defendant. It appears that this stock was pledged to the Produce Exchange Trust Company of the city of New York as security for a loan of money, and that the sheriff, under the warrant of attachment, attempted to levy upon the said stock by serving upon the Produce Exchange Trust Company a notice'in the form prescribed by subdivision 3 of section 649 of the Code of Civilprocedure. It also appears from the affidavit of the treasurer of the defendant that the said 3,220 shares of stock belong to the defendant and are now on deposit with the. Produce Exchange Trust Company of the city of New York, pursuant to an agreement whereby the sanie are so deposited as a pledge of security for the payment of a-certain note for $2,350, and that such levy was "made by serving upon the said Produce Exchange Trust Company, or some of its officers, a notice in the form prescribed by subdivision 3 of section 649 of the Code of Civil Procedure. Subdivision 2 of that section of the Code provides that a levy under a warrant of attachment must be made, upon the personal property capable of .manual delivery by taking the same into the sheriff’s actual. custody. Subdivision 3 of the same section provides that a levy under a warrant of. attachment must be made upon other personal property by leaving a certified copy of the warrant and a notice showing the property attached with the person holding the same, or, if it consists of a right or share in the stock of an association or corporation, or interests or
The question under consideration is how a valid levy upon such property can be made under section 649 of the Code. By the transfer of this stock to the Produce Exchange Trust Company as a security for a loan of money the Produce Exchange Trust Company acquired a special interest in the stock and became entitled to hold the same as security for its loan. It was thus a person “ holding the same ” within subdivision 3 of the section before cited. The property has come within this State by the transfer of the shares of stock by the defendant corporation to the Produce Exchange Trust Company as security for a loan of money. The trust company being in possession of the stock as bailee, became the trustee for the pledgor, first to pay the debt and second to pay over the surplus to the defendant. (Wheeler v. Nowbould, 16 N. Y. 398; Gillet v. Bank of America, 160 id. 552,560.) The defendant has the right of a re-delivery of the stock to it upon payment of the loan for which it was held as security; but the title to the stock or the right to the possession thereof having passed to the trust company who holds it as trustee, the reversion or right to the possession of the stock upon payment of the loan is .property which is within this State, and I can see no reason why it should not be subject to a levy by attachment. The defendant has subjected this stock to. the laws of this State by reason of bringing it here and depositing it with a resident
But assuming that the question as to whether or not the plaintiff has obtained a valid levy upon the stock is doubtful, I do not think that question should be determined upon this motion. To succeed upon this motion the defendant was bound to make it appear that the levy was voidable or void. The sheriff has not,attempted to take possession of the stock from the trust company, but has simply served a notice required- by the Code for the purpose of attaching the right of the defendant to the stock so far as that right is capable of levy under such attachment. That this is a proper proceeding where personal property is held by a pledgee as collateral security for a sum of money was settled by Warner v. Fourth National Bank (115 N. Y. 251). By the service of the copy of this warrant of attachment upon the trust company there was either a valid levy, or the notice was ineffectual for any purpose. If the service of such a notice was ineffectual there was no levy to set aside or vacate. If there was a valid levy, or the notice was effectual in any way to bind such stock, such levy should not be set aside upon' notice. Where a sheriff takes possession of property belonging to a non-resident defendant under an attachment and where the property was not subject to such levy, the only way that the property can be released is by a motion to set aside the levy ; but where, as here, all that has been done is to serve a notice upon a person claimed to be in possession of the property of the defendant and where a question is presented as to whether or not the sheriff is entitled to levy upon that property, the effect of that notice can be much better determined upon proceedings to enforce the levy than to set it aside.
O’Brien, J., concurred; Rumsey, J., concurred on first ground.
I am of the opinion that no valid levy was or could be made upon the stock in question (Matter of Whiting, 150 N. Y. 27), and, therefore, no motion was necessary to be made to set aside a levy which never existed. I concur in the result for the above reason.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.