| New York Court of Common Pleas | Dec 15, 1858
The material question to be here determined is, whether the attachment issued out of the Marine Court was duly served by the plaintiff, as constable, on the 19th of May, 1856? because, if such was the case, it is conceded that the proceeds of the property attached, and applied to the payment of executions delivered to the defendant, as sheriff, after that day and prior to the 26th of May, were more than sufficient to pay the amount of the judgment recovered in the Marine Court on the return of the attachment. The return of the constable is in the following words, endorsed on the writ:
“ By virtue of the within attachment I did, on the 19th day of May, 1856, attach and take into my custody the goods and chattels of the defendant within named, and an inventory of which the annexed is a copy; and immediately on the same day, because I could not find the defendant, I left a copy of said attachment and*216 inventory with a person, in whose possession I found the goods and chattels of the defendant, at No. 252 Washington street in the city of New York.”
The 36th section of the Non-imprisonment Act (Laws of 1831, 396; 2 E. S. (4th ed.) p. 461, § 213 ; also p. 432, § 29,) directs that the attachment shall be executed by the constable to whom it is delivered, by attaching and taking into his custody such of the goods and chattels of the defendant as shall be sufficient to satisfy the plaintiff’s demand, immediately making an inventory of the property seized, and leaving a copy of the attachment and of the inventory, certified by him, at the last place of residence of the defendant; and if the defendant can be found in the county, such copy shall be served upon him personally, instead of leaving it at his last place of residence. But if the defendant has no place of residence in the county where the goods and chattels are attached, and cannot be found therein, such copy and inventory shall be left with the person in whose possession the goods and chattels shall be found.
It appears that the attachment under which the plaintiff claims, was issued against the property of one James Orawford upon the application of one James L. Butler, a creditor, and was founded on the affidavit of Butler and others tending to show that Crawford had made a colorable sale of his property contained in his store and place of business No. 252 Washington street, with intent to defraud his creditors. That after diligent search for him by Butler for 48 hours, by sending and going to his residence No. 54 First street in this city, he had been unable to find him; and Butler’s belief was that Crawford kept himself concealed to avoid his creditors, and to avoid service of process. This was sworn to two days prior to the issuing of the attachment.
The facts thus stated rendered the duty of the plaintiff, as constable, in executing the attachment, very plain and simple. After taking the goods and chattels into his possession, and making an inventory thereof, he was to make diligent inquiry for the defendant Crawford, and if he could not he found in the county, then
Now it is quite clear, from the plaintiff’s return, that the attachment was not served in the manner required by law, nor was the return sufficient to authorize Butler to proceed to trial before the justice upon the return day of the attachment. Lb., § 38; Cook v. McDoel, 3 Denio, 317" court="N.Y. Sup. Ct." date_filed="1846-10-15" href="https://app.midpage.ai/document/cook-v-mcdoel-5465320?utm_source=webapp" opinion_id="5465320">3 Denio, 317. It is true, the justice acquired jurisdiction to proceed to trial and judgment on that day by the defendant Crawford voluntarily appearing, but that act could not make an incomplete service of the attachment perfect in law as against prior executions, already levied by the defendant in this action, in favor of other creditors. Horton v. Hendershot, 1 Hill, 118. Although the judgment was valid, yet the plaintiff, as constable, acquired no other right to the property than such as a legal service of the attachment would have given him, (Homan v. Brinkerhoff, 1 Denio, 184" court="None" date_filed="1845-05-15" href="https://app.midpage.ai/document/homan-v-brinckerhoff-6142220?utm_source=webapp" opinion_id="6142220">1 Denio, 184; Barnes v. Harris, 4 Comst. 374); and, as we have seen the attachment was not served in the manner re-required by the statute, he acquired no right to the possession of the property, nor any right of action respecting it. It is the service of the attachment which places goods taken under it in the custody of the law, and creates a valid lien, which a subsequent execution cannot remove. Van Loan v. Klane, 10 Johns. 129" court="N.Y. Sup. Ct." date_filed="1813-05-15" href="https://app.midpage.ai/document/van-loan-v-kline-5473188?utm_source=webapp" opinion_id="5473188">10 John. 129.
Judgment affirmed.