McGinn v. Ross — 11 Abb. Pr. 20

Majority

p. 20

McGINN against ROSS.

New York Superior Court, General Term;

April, 1871.

Headnote

Attachment.—Levy.—Effect of Notice.—Return of Inventory. .

In order to prove that a debt due from the defendant to the plaintiff has been levied on under an attachment on the property of the plaintiff, at the suit of his creditors, it is not necessary to show that the sheriff has made and returned an inventory of the property levied on.

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It is a sufficient levy if the sheriff leave with the debtor a certified copy of the warrant of attachment, together with a notice showing the property levied on; and thereupon the lien of the attachment becomes pomplete, and the sheriff becomes vested with all the creditor’s interest in the claim.

It seems, that the failure of the sheriff to make and return an inventory as required (Code, § 232), will not invalidate the levy if otherwise sufficient, as the provision requiring an inventory is for the benefit of the creditor at whose suit the attachment is issued, and can be enforced only by him.

A creditor whose debt has been levied on in an attachment suit can convey no title whatever to the debt, until the attachment levy is removed.

Appeal from a judgment.

John McGinn sued Joseph Ross, in the New York superior court, to recover the balance of the purchase money, due on the sale of a stock of goods and fixtures in a store.

The facts of the case were as follows : On March 29, 1865, Branigan, the plaintiff’s assignor, sold and delivered to the defendant, for a consideration of four thousand dollars, the property in question. The defendant paid sixteen hundred dollars of the purchase 'money at the time of the sale, and agreed to pay the balance to Branigan’s wife on the following day, which, however, he failed to do.

Shortly after the sale, Branigan absconded and remained, away several years, and after his return, on September 10, 1869, assigned the claim for the unpaid balance of the purchase money to the plaintiff.

The defendant, among other defenses, alleged the issuing of two attachments against the property of Branigan, on the grounds that he had absconded from the State and had assigned, disposed of, and secreted his property, with intent to defraud his creditors; a copy of which attachments were served by the sheriff upon the defendant in this action, having indorsed

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thereon a certificate and notice subscribed by the sheriff that it was a true copy, and that all debts, credits, and effects of Branigan were liable thereto, and were thereby attached by him, including the alleged claim assigned to the plaintiff in this action.

On the trial, the defendant offered in evidence the attachment proceedings in the two suits by creditors against Branigan, one in the court of common pleas, issued in March, 1865, and the other in the supreme court, issued in April, 1865, together with the record of judgment in such suits. By these records it appeared that execution had been issued in both suits, and in the former had been returned satisfied, but in the latter no return appeared to have been made.

The offer of this evidence was overruled, and all the record of the proceedings rejected.

The defendant then offered to show that under the second attachment and execution, the sheriff levied upon and attached in the hands of Ross (the defendant), his liability to pay the balance of the purchase money of the property in question, by serving upon him a copy of the attachment, together with a notice that he levied upon such claim under and by virtue of the attachment and execution issued in the second suit, both of which acts took place about the time of the issuing of the attachments referred to, and long before the assignment to the plaintiff. The defendant also offered to prove that the attachment and execution were still valid processes in the hands of the sheriff, not returned or satisfied.

This offer was also overruled, and the evidence rejected.

To all these refusals to receive evidence the defendant excepted.

It appeared in evidence that, under the attachments, the sheriff had taken the stock of goods sold by Branigan to the defendant, and had subsequently sold the

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same under the execution, upon which sale enough was realized to satisfy the first judgment. The defendant made no resistance to such taking of the sheriff.

The jury, under the direction of the court, rendered a verdict for the plaintiff for the amount claimed.

Judgment was suspended, and the exceptions ordered to be heard in the first instance at the general term.

Albert Mathews, for defendant, appellant.

I. The seizure by the sheriff of the claim assigned to the plaintiff, and his stiff holding thé same under a valid process of attachment and execution against Branigan, are a complete bar to the action (Prescott v. Hull, 17 Johns., 285 ; Holmes v. Remsen, 20 Id., 229). (1.) The attachment and execution are valid process. (2.) The attachment was levied in due form of law, by special notice, upon the demand in question (Code of Pro., §§ 235, 463, 464 ; Wilson v. Duncan, 11 Abb. Pr., 3 ). (3.) The sheriff was bound to keep the same in his custody until collected and applied in satisfaction of this judgment against plaintiff’s assignor (Code of Pro., § 237, subd. 4 ; Mechanics’ & Traders’ Bank v. Dakin, 50 Barb., 587 ).

II. The levy satisfied the judgment, and the claim of Branigan immediately inured to the benefit of the plaintiff therein (Wood v. Torrey, 6 Wend., 562 ).

III. The claim, being thus in custodia legis, was not susceptible of assignment, without the consent of both the sheriff and the plaintiff in the process referred to (Thompson v. Button, 14 Johns., 84 ; Campbell v. Erie Railw. Co., 46 Barb., 540 ).

IY. The demand in suit was therefore not the property of the plaintiff in this action, and he was not entitled to maintain such action, and the evidence of the attachments should have been admitted (Stamford Steamboat Co. v. Gibbons, 9 Wend., 327 ; Clark v. Yale,

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12 Id., 470 ; Hubbell v. Ames, 15 Id., 372 ; Russell v. Ruckman, 3 E. D. Smith, 419 ; Wilson v. Duncan, 8 Abb. Pr., 354 ; Bliven v. Hudson River R. R. Co., 35 Barb., 188 ; S. C., on appeal, 36 N. Y., 403 ).

J. H. Whitelegge, for plaintiff and respondent.

I. The seizure of the property by the sheriff on March 30, 1865, under the attachment against Branigan, is no defense to the action, since Branigan had parted with his entire interest the day before, and the title was then in the defendant, and the sheriff was a trespasser. The judge, therefore, properly ruled out all evidence as to any transaction between any persons other than the defendant and Branigan, for want of the necessary allegation in the answer. Such papers and judgments are not evidence of any facts determined thereby, except as between parties and their privies (Degraff v. Hovey, 16 Abb. Pr., 120 ; Hubbard v. Briggs, 31 N. Y., 518 ; Roberts v. Anderson, 3 Johns. Ch., 371 ).

II. It does not appear that any property whatever was attached or levied upon by virtue of the second attachment or the execution therein referred to, and no evidence was offered in that behalf, and no allegation in the answer, or proof upon the trial, was offered to connect the plaintiff or defendant therewith, and the papers were properly ruled out of court.

III. To gain a lien under an attachment, the proceeding must be regular, and there must be actual seizure of the property, if it be capable of manual delivery ; and the return of the writ, or the inventory' attached, is the evidence of seizure (Yale v. Matthews, 20 How. Pr., 430 ).

IV. There being no evidence offered of a return or inventory, or of a levy under the attachment, no lien exists on the plaintiff’s claim.

As the rejection of

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the evidence offered by the defendant appears to have been erroneous, we have not deemed it necessary to examine any of the interesting questions raised by the other exceptions.

It is not understood upon what ground the evidence was excluded, but the plaintiff’s counsel insisted that there had been no sufficient levy upon the claim in suit, so as to vest the right to it in the sheriff.

It must be assumed, for the purpose of examining the question, that the execution upon the second judg-. ment was unsatisfied; otherwise the office of the attachment would have been spent, and a new levy would have been necessary under the execution.

These attachments were issued in actions under the Code, and enough appeared to give jurisdiction; and I think the levy was sufficient to place the debt due from the defendant to Branigan in the custody of the law. And as the plaintiff got by the assignment such interest only as Branigan had, the evidence offered furnished a defense to the plaintiff’s action.

The levy under the attachment, as it was offered to be shown, was strictly in conformity with the statute. The Code provides that all property of the defendant in the attachment shall be liable to levy; and in respect to “debts” due to the defendant, that the attachment shall be executed by the sheriff’s leaving a certified copy with the debtor, with a notice showing the property levied on (Code, §§ 234, 235).

That all this was donej the evidence offered would have established.

The effect of such notice was to constitute it a sufficient levy upon the claim in this action, and to vest in the sheriff the right of action upon it (Burkhardt v. Sanford, 7 How. Pr., 329 ), unless, as was claimed by the plaintiff’s counsel, the offer of evidence was incomplete in not embracing an offer also to show the

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' making and return of an inventory as required by the statute (2 Rev. Stat., 4, § 8).

The offer was, I think, sufficient. It was to prove. a notice from the sheriff to the debtor that he had levied upon the claim.

The lien of the attachment thereupon became complete, and the sheriff became vested with all of Branigan’s interest in the claim.

The omission of the sheriff to make and return an inventory would not probably of itself invalidate the levy, if, otherwise, it was sufficient; as the provision requiring an inventory is for the benefit of the creditor, and can be enforced only by him.

But however that may be, it will be seen that although the sheriff is required (Code of Pro., § 232) to proceed in all respects, in the manner required of him by-law in case of attachments against absconding debtors, yet the Revised Statutes do not contain any provision constituting a notice to a debtor necessary to a levy upon the debt, and therefore an inventory is not required. The provision in the Code is new, and was probably designed, by giving a better notice to the debtor, to protect him against the claim by his creditor.

At the time of, and long previous to, the assignment to the plaintiff, all the rights of his assignor had passed to the sheriff, and he was incapable of transferring anything to the plaintiff until the attachment levy was removed, which had not been done at the time of the trial.

For these reasons I think the defendant ought to have been permitted to make good his offer and to prove his defense.

The exceptions should be sustained, the verdict set aside, and a new trial granted, with costs to the defendant to abide the event.

Jobes, J., concurred.

Footnotes

* Present, Barbour, Ch. J., and Monell and Jones, JJ.