O'Brien v. Mechanics' — 14 Abb. Pr. 314

Majority

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O’BRIEN against THE MECHANICS’ AND TRADERS’ FIRE INSURANCE COMPANY.

New York Superior Court,

General Term; May, 1873.

Headnote

.Attachment.—Manner of Lett. — Sheriff's Action. — Short Limitation.

Under section 335 of the Code of Procedure, an attachment of a debt due from a third person to the defendant in the attachment, must be by notice, which so particularly describes the property or debt that the party served is enabled to identify it; and a notice in general terms is void.^[1]

The case óf Olark ®. Goodrich, 41 S. T, 310; 44 Sow. Pr., 336, explained.

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James O’Brien, sheriff of New York, sued the defendants on a policy of insurance they had issued in

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favor of E. S. Candler, Jr., upon Ms property, wMch was subsequently destroyed by fire.

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The plaintiff claimed to recover Candler’s money by virtue of certain attachments which he held, issued

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at the suit of various creditors of Gaudier, and of which attachments he had given notice to the insur

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anee company for the purpose of binding the fund in their hands. The notice of attachment which the sheriff gave the company was in general terms, purporting to cover all the property, money, bank notes, books of account, vouchers, debts, credits, and effects of Candler in .their possession.

At the trial it appeared that within a month after the loss, Candler furnished preliminary proofs to the company, and was required by them to furnish more particular proofs. This he did in part, but alleged that he was unable to furnish the remainder required.

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The notice of attachment was given to the defendants after this, and before the expiration of the six months limited by the policy.

The sheriff brought this action in June, 1869, to collect the insurance, under the provisions of sections 232, and 237, subdivision 4, of the code of procedure. The answer alleged that the loss was fraudulently overstated in the preliminary proofs, and that the action was not brought within six months after the loss, as required by the policy.

Defendant’s counsel moved to dismiss the complaint on the following grounds :

I. That the attachments had never been levied upon the property in question.

II. That in the twelfth condition of the insurance it was expressly agreed, that no suits or actions against the company for the recovery of any claim by virtue of the policy, should be sustainable in any court of law or chancery, unless said suit should be commenced within six months after the loss occurred.

III. That no right of action ever accrued to any body, inasmuch as the proofs of loss were never served in compliance with the ninth condition of the policy.

The justice dismissed the complaint on the ground that the sheriff’s proceedings did not constitute a levy, and that the unadjusted claim of Candler against the company had not been attached, the notice served not sufficiently “ showing the property levied on” {Code, § 235).

Plaintiff’s exceptions were ordered to be heard in ’ the first instance at the general term, with a stay in the action until decision thereon.

William W. Badger and Livingston K. Miller, for the plaintiff.

George W. Parsons, for the defendant.

The learned judge who presided at the trial dismissed the complaint for the reason that the claim of Candler against the defendant upon the policy in question had not been attached by the sheriff, and that consequently the plaintiff had no such title to the property as is necessary for the maintenance of the action.

The manner in which attachments under the Code are to be executed so as to bind property of which manual delivery cannot be made, is prescribed by section 235. They are to be executed by leaving a certified copy of the warrant of attachment with the person or corporation holding such property, “with a notice showing the property levied upon.” Section 236 furnishes the sheriff with the means of obtaining a disclosure of all the particulars necessary to enable him to describe the property intended to be levied upon with due particularity. He may apply to the person holding the property for a certificate designating the amount and description of any property so held. In case the certificate be"refused, it may be compelled. .

In Kuhlman v. Orser ( 5 Duer, 242 ), this court expressly held, as one of the grounds upon which judgment absolute was ordered for the plaintiff upon the verdict, that the requirement of said section 235 can only be satisfied by a notice which so particularly describes the property that the holder is thereby enabled to identify it, and that a notice general in its terms and containing no specification of the particular property meant to be levied on, is insufficient and void.

This decision has since been followed by this court in Wilson v. Duncan ( 11 Abb. Pr., 3 ), and has been expressly approved by the court of appeals in Clarke v. Goodridge ( 41 N. Y., 210 ). It is true that in another report of the last-named case contained in 44 How. Pr., 226 , an attempt has been made to show that the of Chief Justice Hunt the point

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now under consideration, was not concurred in by a majority of the court and was not necessary to the decision of that case. But the printed cases in Clarke v. Goodridge and Drake v. Goodridge, which were handed up by defendant’s counsel, and a critical examination of the opinions published in 44 How. Pr., in the light which the printed records throw upon them, decidedly show, that although there were two motions in these cases, which, may have been argued , together in the court of. appeals, they had nevertheless been disposed of originally by two different'judges of the supreme court, and that they involved essentially different questions, which were ultimately disposed of by the court of appeals, as follows:

In the one case the order was reversed, for the reason stated by Chief Justice Hunt, and concurred in by all the judges except Daniels and James, that the notice served by the sheriff upon the National Bank of the Republic, did not specify sufficiently the property intended to be levied on, and did not refer to the interest of the debtor in such property with reasonable certainty.

In the other case the order was reversed for the reasons stated in the opinions of Grover and Lott, JJ., namely, that it did not appear that the sheriff had at any time made an attempt in any way to serve the attachment, while it was in his hands, upon the debt due from Yexhuven & Co. to Goodridge; that consequently the attachment never had been a lien on the fund, and that upon its return the sheriff’s power under it had ceased. Mr. Justice Geo ver was, therefore, entirely correct in saying ( 44 How. Pr., 229 ), that the sufficiency of the notice served by the sheriff upon the National Bank of the Republic in the first case above referred to, had nothing tó 'do with the second case.

The doctrine first laid down in Kuhlman v. Orser (supra), represents, therefore, not only the settled law

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of this court, but the law of this ’ State as settled by the court of appeals; and from this it follows that the notices served in the case at bar,—which purported to cover generally all the property, real and personal, money, bank notes, books of account, and vouchers and papers relating thereto, and the debts, credits and effects of Candler in the possession of or under the control of the defendant,—and which were not followed up by the procurement of a certificate and the returning of an inventory, were wholly insufficient to work a levy upon Candler’s claim under the policy in question.

This being so, the sheriff is not in a position to maintain this action, and the defect could not be cured by proof, that subsequent to its commencement, but long after the limitation of the six months prescribed by the policy for its commencement had attached, he made a new levy accompanied by a proper notice. Such a contract of limitation is valid, and will be enforced by the courts (Roach v. New York & Erie Ins. Co., 30 N. Y., 546 , and Mayor, &c., of N. Y. v. Hamilton Fire Ins. Co., 39 N. Y., 45 ). Hor could the defect be obviated by mere conversations between the deputy sheriff and defendant’s officers. The remedy given by section 235 is not merely cumulative, but is the only remedy known to the law in the cases there mentioned, and must be strictly pursued.

Plaintiff’s exceptions must be overruled, and judgment absolute, dismissing the complaint, ordered for the defendant, with costs.

Babboub, Ch. J., and Sedgwick, J., concurred.

Judgment accordingly.