Stine v. Greene

72 N.Y.S. 729 | N.Y. App. Div. | 1901

Hatch, J.:

The defendant is a non-resident of the State of New York, being a resident of the Territory of Arizona; the Greene Consolidated Copper Company is a foreign corporation created under the laws of West Virginia, whose principal office is alleged to be in the city of New York.

The plaintiff obtained an attachment in the action against the property of the defendant, and sought to make a levy by service of a copy of the warrant, with the customary notice, upon the secretary of the Greene Consolidated Copper Company in the city of New York. The sheriff also demanded of the secretary a certificate of the property held by the said company, as required by section 650 of the Code of Civil Procedure, but no such certificate was given. Thereafter a further demand for such a certificate was made upon the president of the company, William C. Greene, the defendant herein, but such certificate was refused.

The defendant made a motion by order to show cause to vacate the warrant of attachment and the levy attempted to be made thereunder, which was denied. On April 8, 1901, the plaintiff obtained an order under section 651 of the Code requiring the Greene Consolidated Copper Company, through its officers, the secretary and president, to appear and submit to an examination concerning the property of the defendant. On April tenth the defendant obtained an order to show cause why the order for examination should not be vacated, and in the meantime staying all proceedings thereunder. This motion was denied, and from the order denying the same the defendant appealed to this court, which affirmed the order without opinion. Thereafter the present attorneys for the appellant, having been substituted as attorneys for the defendant and the Greene Consolidated Copper Company, obtained an order on behalf of the latter to show cause why the order for its examination and a subsequent order made, after a stay had been vacated, for the examination to proceed should not be vacated, and staying proceedings for such examination pending the hearing of the motion. Upon the return of this order the motion was denied, and the Greene Consolidated Copper Company was ordered and directed to attend and be examined, and the secretary and treasurer were directed to appear for such purpose on a day named. From such order this appeal is taken.

Upon the appeal of the defendant Greene from the order directing him to appear and be examined, this court reached the conclusion that, as to property within this State owned by him, whether the same was a debt due from the copper company or was represented by shares of stock therein, the court had jurisdiction, under the provisions of sections 650 and 651 of the Code of Civil Procedure, to grant an order requiring him to submit to an examination. For, this property, or any other property the subject of levy under the attachment, the same being within the jurisdiction of the court, could be and was snbject to be applied in payment of the debt represented by the attachment. (Simpson v. Jersey City Contracting Co., 47 App. Div. 17; affd. on appeal, 165 N. Y. 193.) While that determination is not res adjudicata upon the present appeal, yet, in substance and effect, it is a controlling decision upon the question presented upon this motion, as the present application is supported by substantially the same proof as appeared upon the former motion. We agree with the appellant that the examination of third persons with respect to property of an attachment debtor can be had only with respect to property that can be reached by an attachment. But it is claimed by the respondent that such property exists within this jurisdiction, and if so, then, clearly, there is the right of examination to ascertain the existence of such property, especially where a certificate is refused, or an insufficient one is given. The provisions of the section of the Code to which we have called attention are evidently enacted to furnish a means to ascertain the existence of such property. If it was known that a third person had intangible property of this kind in his possession there would be no need of an examination, as the Code, under such circumstances, authorizes a remedy for the sheriff to reduce it to possession.

The present papers aver, it is true, upon information and belief, that property which is the subject of attachment is held by the copper company as the property of the defendant, and as the principal place of business of the company is shown to be within the city of New York, sufficient appears to authorize the examination, especially so in the absence of a denial upon the part of the parties sought to-be examined that they hold property of the defendant within this jurisdiction. While, ordinarily, averments on information and belief are not sufficient (Ives v. Lockwood, 65 How. Pr. 518), such rule is not, in all cases, conclusive (Seligman v. Falk, 13 Civ. Proc. Rep. 77), and in view of the peculiar circumstances surrounding this claim, we think the case sufficient to fall within the exception.

The examination, however, must necessarily be limited to property within this jurisdiction subject to attachment, and cannot be extended to property situated elsewhere. The latter examination would be impertinent, as by no possibility could the lien of the attachment be extended to it. Within this limitation, therefore, we think the order should be affirmed, with ten dollars costs and disbursements to the' respondent.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.