Schumann v. Davis — 26 Abb. N. Cas. 125

Majority

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SCHUMANN v. DAVIS.

N. Y. City Court, Special Term;

December, 1890.

Headnote

1. Attachment; what may be sold as perishableproperty.] The term “perishable” in the statute {Code Civ. Pro. § 656), allowing property attached, if perishable, to be sold at once by order of the court, should be liberally construed, and not limited to property inherently liable to deterioration and decay, but to cover property which would materially depreciate in value by being kept. Disapproving rule in Fisk v. Spring, 25 Hun, 367 .^[1]

2. The same; woolen goods ; depreciation in value.] So held, sustaining an order for the sale of woolen goods used by fashionable tailors, to make up clothing upon proof that the styles in such goods change every season, and their value would depreciate largely if not sold at once.

Motion by the defendant to set aside an order for the sale of property attached as perishable property.

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In this action by Theodore F. Schumann and another .'against John H. Davis, the sheriff attached certain woolen goods, and the plaintiff thereupon secured an ,ex parte order for the sale of the attached property as ■perishable within the meaning of Code Civ. Pro. § 656, providing that “ if property attached other than a ves•sel, is perishable, the court or judge may, by an order made, with or without notice, as the urgency of the •case in its or his opinion, requires, direct the sheriff to ■sell it at public auction, and thereupon the sheriff must sell it accordingly.”

The defendant now moved on notice to set aside the ■order for sale.

Goodrich, Deady & Goodrich, for defendant and the •motion.

George Hahn, for the plaintiff, opposed.

The order directed the sale of certain woolen goods levied on by the sheriff under a warrant of attachment issued herein. The goods are such as fashionable tailors use to make up clothing. The plaintiff proves by experts that the styles in such .goods change every season, and that in consequence, .the value will depreciate largely if they are not sold at once. That the action will not be reached for trial for many months, and that in the meantime the goods will become hard and unsuitable for use, and-are liable to become moth eaten and injured by dust and dirt, consequences that will be difficult to avert.

The question presented on these facts is whether the goods are perishable within the meaning of section 656 ■of the Code. This provision was intended to prevent loss either to the debtor or creditor by the depreciation ■of attached property, and should be construed to

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further its object and purpose. The construction approved in Fisk v. Spring ( 25 Hun, 367 ),^[1] is too circumscribed. That case holds that to procure an order under this section, it must be shown that the property is inherently liable to deterioration and decay. This may be a correct conclusion, if the technical meaning of the word “ perishable ” is to be adopted, but the statute uses that term in a broader and more liberal sense, one more suited to the exigencies of business requirements. Bouvier gives a better definition of the term, which he says means “ Goods which are lessened in value, and become worse by being kept.”

In Webster v. Peck ( 31 Conn. 495 ), it was held that where in the case of levy upon personalty, the time before a sale can be made is necessarily long, a sale may be directed of property liable to material depreciating in value from other causes than decay. In the case cited, Judge Butler said: “ The great delay beween the attachment of property on mesne process and obtaining judgment, which attended litigation previous to the reorganization of our judicial system, and the obvious equity of the law, led to a liberal construction of the státute to advance the remedy, and orders for the sale of property, not in its nature perishable, but which would materially depreciate in value for other causes, have been quite common. The only object of the General Assembly was to prevent loss to the parties, and so long as the parties are benefited, that liberal construction may be tolerated.”

Speedy sales of perishable property proceed upon the principle of necessity. To permit property to deteriorate or become worthless by the law’s delays, would be to impair, if not defeat the object of the attachment. To keep property until it deteriorates in value is to do an injury to all concerned, and this is certainly not the policy of the law. The purpose of the attachment is to realize money, the net amount

* S. C, with note, 1 Civ. Pro. R. 378.

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received is credited to the defendant, and it is to the interest of all that the attached goods be sold while in their best condition and calculated to bring the best prices. It is clear that the goods will not increase in-value ; the proceeds of. the sale may, for the amount realized may earn interest, while the retention of the goods by the sheriff must involve both expense and risk. The defendant who moves to set aside the order, claims that the goods belong to another, who has sued or threatened suit against the sheriff for their conversion.

Our statute (Code, § 656) provides that if property attached, “ other than a vessel,” is perishable, it may by order of the court be sold. This special exception is significant.

Excepting a vessel from the term “ perishable ” property implies that, but for the exception, a vessel might be sold as perishable property. The language certainly indicates that the term “ perishable ” property was to receive a liberal and not a literal, technical or narrow construction. The order made is really a benefit to all concerned, is within the spirit and purpose of the statute, was not an abuse of discretion, and the motion to set it aside must be denied, but without costs. The order to be entered hereon must provide for notice of sale to the defendant’s attorneys and to the claimant as well, in addition to the usual advertisement. This will enable all the parties to protect their respective interests .from any possible injury.