Hyperlawhypertext legal database McBride v. Illinois National Bank 128 A.D. 503

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McBride v. Illinois National Bank

128 A.D. 503 Court First Department, Decision date 1908-11-06 English

Delivered by McLaughlin, J.:

Contents

Majority

p. 503
Dennis H. McBride, Respondent, v. Illinois National Bank, Appellant.
First Department,
November 6, 1908.

Headnote

Attachment against national bank—when motion to vacate may be made — sufficiency of moving papers.
By virtue of the Federal statutes an attachment cannot legally be issued against a national banking association by any State, county or municipal court prior to judgment. t
When such attachment is issued against a foreign national bank contrary to the statute, it may move to vacate the same at any time before the attached property or,the proceeds thereof has been applied on a judgment recovered in the action, even though issue has been joined.
The papers on such motion are sufficient where they state that “warrant of attachment was illegally issued against the property of the defendant, d national bank, not located in this State.’’
Rule 37 of the General Rules of Practice, requiring the moving papers to specify the irregularities on which a motion is based, has no application.
Appeal by the defendant, the Illinois National Bank, from an-order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1908, denying the defendant’s motion to vacate an attachment.
Delos McCurdy, for the appellant.
George D. Beattys, for the respondent.

The defendant is a national bank located and doing business in the State of Illinois. Upon the ground that it was a foreign cor

p. 504
poration the plaintiff obtained ■ a warrant of attachment, and by virtue thereof a levy was made upon certain property of the defendant in the county of New York. After issue had been joined and the matter sent to a referee to hear and determine, the defendant moved to vacate the attachment upon the ground that an attachment could not be issued against the property of the defendant -=— a national bank — not located in the State. The motion was denied and defendant appeals.

An attachment, cannot be .legally issued under the statutes of the United States (U. S. R. S. § 5242) against a national banking association prior to judgment by any State, county or municipal court. (Van Reed v. People's Nat. Bank, 67 App. Div. 75 ; affd,, 173 N. Y. 314 ; 198 U. S. 554 ; Raynor v. Pacific Nat. Bank, 93 N. Y. 371 ; Bank of Montreal v. Fidelity Nat. Bank, 112 id. 667; Pacific Nat. Bank v. Mixter, 124 U. S. 721 .)

The attachment accomplished no purpose because it was not only issued without authority of, but contrary to law. The defendant had a right, notwithstanding issue liad been joined, to move to. vacate the same. Its motion ctiuld be made at any time before the attached property, or the proceeds thereof, had been applied to the payment of a judgment recovered in the action. (Code Civ. Proc. § 682.) The ground upon which the motion was made was sufficiently stated in the moving papers. It was that the “ warrant of attachment was illegally issued against the property of the defendant, a national bank not located in this State; ” in other words, it was upon the ground that the facts stated in the papers upon which the attachment was based afforded no ground for an attachment. Bnle 37 of the General Buies of Practice, requiring the moving papers to specify the irregularities on which the motion was made has no application. (Andrews v. Schofield, 27 App. Div. 90 .)

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

•Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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