Almy v. Thurber — 12 Abb. N. Cas. 459

Majority

p. 459

ALMY v. THURBER.

N. Y. Common Pleas ; General Term,

March, 1883.

Headnote

Action by Sheriff and Creditor in aid op Attachment.—Certificate of Fdnd attached.—Estopped.

Although an action lies under Code Civ. Pro., §§ 655, 677, by the sheriff or an attaching creditor, against a third person who, on being served with the attachment in order to bind a fund in his hands, has given the sheriff a certificate of the amount of the fund, under » § 650, yet, such person is not estopped from showing, in such an action, that there was a mistake in giving the certificate.^[1]

The certificate is no higher evidence than would b.e an examination under oath.

p. 460

It seems, that the doctrine of equitable estoppel does not apply to declarations exacted by statute.

Appeal from a judgment and an order denying a new trial.

Harvey S. Almy, and Peter Bo we, as sheriff of the city and county of New York, sued Horace K. Thurber, and others, his partners in the firm of H. K. Thurber & Co. to recover a fund attached in their hands. Plaintiffs joined as such under section 677 of the Code of Civil Procedure, and. sought to recover from H. K. & F. B. Thurber & Co. property in their possession attached by the sheriff in an action by his co-plaintiffs against John Gfourard & Co. of Curacoa.

The attachment against the latter as non-residents was served upon the said defendants Thurber & Co. on May 10,1881, and a certificate as to property or moneys in their hands belonging to the debtors J. Gfourard & Co. was demanded from them pursuant to section 650 of the Code. On May 28, 1881, they delivered to the sheriff the following statment:

New York, May 28, 1881.

Messrs. John Gfourard & Co., Curacoa, to IT. K. & F. B. Thurber & Co., Dr., importers and wholesale grocers, West Broadway, Reade and Hudson streets, P. 0. box 3895:

Cr., April 26, by cash .... $2,003 63

Dr., May 10, to cash ... 20

May 13, to mdse. . . $1,882 48 1,882 68

$120.95

(Signed) H. K. & F. B. Thurber & Co.

The plaintiffs sought to recover the $2,003.63, as the cash certified to be on hand to the credit of the debtors John Gfourard & Co., on May 10, 1881, when the attachment was levied.'

It was shown on the trial that on May 10, 1881,°

p. 461

there was but $120.95 in the hands of defendants Thurber & Co. to the credit of the debtors J. Gourard & Co., the merchandise charged at $1,882.48 having been sold and delivered to the debtors by defendants some time prior to that date. The plaintiff claimed that the defendants were estopped from showing those facts by their statement delivered to the sheriff in which the merchandise was charged on May 13, 1883, because, on receipt of such statement, the sheriff, relying thereon, made no further effort to find property subject to the attachment. The defendants contended that the statement alleged a balance of $120.95 only to be subject to the attachment.

The court left it to the jury to say if the certificate was given for the purpose of certifying they had $120.95 in their hands at the time of the levy. The jury found for the plaintiffs, $120.95, and plaintiffs appealed.

It was shown by evidence that there was an error in the statement delivered to the sheriff by defendants, by which it appeared that the charge for merchandise in their favor, against the defendants in the attachment accrued after the levy ; whereas,- in fact, such charge accrued long prior to the levy, and at the date of levy, May 10, •1881, there was but $120.95 due John Gourard & Co., the defendant in the attachment, from these defendants. Defendants were not estopped from showing such error-in an action brought on the faith of their statement. The certificate required of a person who has property of the attachment debtor, or is indebted to him by section 650, is evidently intended as the basis of an action under sections 655 and 677 against such person by the sheriff or the plaintiff In the attachment. By section 661 it is provided that if'such person refuses to give the certificate, or gives a false or insufficient cer

p. 462

tificate, lie maybe required to submit to an examination under oath concerning the same.

A certificate voluntarily given is of no higher character than a statement under oath made upon such an examination, yet it would not be claimed that a person so examined, if mistaken in his testimony, could not correct it or show the truth when subsequently sued upon it. The object of the certificate or examination is apparent from the statute; it is to be used as evidence only; and the sheriff and plaintiff are not justified in using it for any other purpose,—e. g., as a representation of fact upon which they may rely in omitting to secure the demand in suit. The certificate or examination will be prima facie evidence against the party giving it in an action by the sheriff or the attaching creditor, but is no more conclusive than in an examination of a party in anticipation of an action under section 870 of the Code.

The doctrine of estoppel applies only to voluntary representations, declarations, admissions and acts, and has not been extended, so far as I can discover, to declarations exacted by statute. A party certifying or testifying under stress of the law has not the option of speaking or holding his tongue ; he is required to give testimony, and is to be indulged, therefore, as any other witness, and allowed to correct honest mistakes in his testimony when confronted with it.

The judgment should be affirmed, with,costs.