Yerkes v. . McFadden

141 N.Y. 136 | NY | 1894

We think the General Term erred in vacating the attachment as to the two appellants in that court, although publication was not commenced against them within the prescribed period. The action was upon a joint liability of the three defendants. Personal service was made on the third defendant Aug. 26, 1892, thirteen days after the warrant of attachment was granted, and the attachment was levied on the joint property of the firm. In an action against joint debtors service of summons on one authorizes judgment against all, which may be enforced by execution against the joint property, although the other defendants are not served, and do not appear in the action. (Code, §§ 1932 to 1935 inclusive; Sternberger v. Bernheimer, 121 N.Y. 194.) The same rule applies in case of an attachment. Where an attachment issues against the property of several defendants in an action on a joint liability, it may be executed by a seizure of the joint property, and although the summons is served on but one of the defendants within the time prescribed, and no service is made or publication commenced against the other defendants, the attachment cannot be vacated as to them for that reason. The attachment and the lien continues, and if the plaintiff obtains judgment on the joint liability, the joint property seized on the attachment may be sold on the execution. The right to seize the joint property on an attachment in an action against joint debtors, although the summons is served on one only, is the same as in case of an execution on a joint judgment under similar circumstances. (Smith v. Orser, 42 N.Y. 132.) The case ofStaats v. Bristow (73 N.Y. 264), has no bearing upon this question. There, in an action brought for a co-partnership debt an attachment was issued against the property of one of the co-partners only, on the ground that he was a non-resident, on which his interest in the co-partnership property was levied upon. The co-partnership at the time was insolvent. After the seizure on the attachment the firm made a general assignment for the benefit of creditors, and subsequently, on obtaining judgment in the attachment action, the interest of the attachment debtor in the firm property was sold on execution. An action was brought to determine the respective rights of the purchaser on the execution sale, and of the assignee for creditors in the property, and it was held that the plaintiff acquired nothing by his levy and sale, because the interest of the attachment debtor in the property was nothing, as the firm was insolvent, and that the assignee acquired title to the corpus of the property under the assignment.

In this case the attachment was against the joint property, and if good as against one of the defendants, was good against all. The lien was not lost, nor could the attachment be vacated as against any of the defendants, there having been a valid service of the summons within the time prescribed by sec. 638 of the Code, upon one of the defendants.

The order of the General Term should be reversed and the order of the Special Term affirmed, with costs.

All concur.

Ordered accordingly.