Souls v. Cornell — 15 A.D. 161

Majority

p. 161

William Souls, Appellant, v. David C. Cornell and Others, Defendants. Leighton Machine Company, Respondent, v. David C. Cornell and Others, Defendants.

Headnote

Attachment — vacated as to all hut one of several partners, it ceases to he a lien on the firm assets.

Where, after an action has been begun against three persons, as partners and joint debtors, by service of process upon one of them, another action is commenced against the same persons, and an attachment, granted against all of them, and levied upon the firm property, is subsequently vacated as to two of them, such attachment is no longer a lien upon the firm property; and an execution, issued in the action first begun, against the personal property of the joint debtor previously attached in that action (and, if that were insufficient, against the partnership property of all the joint debtors), will have precedence in payment from the firm property over an execution subsequently issued under a judgment recovered in the action in which the attachment was sustained only as against one of the partners.

Appeal by William Souls, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 19tli day of December, 1896, denying his application to compel the sheriff of Albany county to return an execution issued to him in the first above-entitled action, on the 24th day of February, 1896.

Scherer & Downs, for the appellant.

J. Newton Fiero, for the respondent.

The plaintiff Souls commenced the first above-entitled action against the defendants as copartners, doing business under the firm name of D. C. Cornell & Co. A summons was served on the defendant Cornell only. Afterwards, on February 21,1896, a judgment was duly entered against all the defendants as joint debtors, and on February 24, 1896, execution was issued to the sheriff of Albany county requiring him to satisfy the same out of the per

p. 162

sonal property of David C. Cornell previously attached in the action, and, if that was insufficient, out of the partnership property of the judgment debtors. Such a judgment and execution were authorized by the provisions of sections 1932, 1934 and 1935 of the Code of Civil Procedure.

The plaintiff in the second above-entitled action also commenced it against the defendants as copartners. An attachment was issued against all the defendants on the 17th day of February, 1896, and thereafter a levy was made on their joint property. On the lltli day of June,' 1896, this attachment was vacated and set aside as to the defendants William J. Finch and Mary C. Grugerty. Judgment was entered in said action on May 8, 1896, and an execution issued thereunder to the sheriff of Albany county. That officer has in his hands, as the proceeds of the sale of the firm property of the defendants, the sum of $793.23.

The plaintiff Souls moved in the court below to have such sum applied on his execution, and that the sheriff be directed to return the same. This appeal is taken from the order of the court below denying said motion.

The plaintiff Souls having duly obtained judgment and issued execution thereon, which, under the provisions of the Code of Civil Procedure above referred to, could be enforced against the joint property of the defendants, was entitled to the order he sought for in the court below, unless the respondent obtained, under its attachment on the firm property of the defendants on the 17th day of February, 1896, a superior right to the money in the hands of the sheriff.

The attachment obtained by the Leighton Machine Company having been absolutely vacated and set aside as to the defendants William J. Finch and Mary C. Gugerty, is to be regarded as if it had originally issued against the defendant David C. Cornell, one of the partners, alone. The vacation of the attachment against two of the three partners was an adjudication that it was not properly issued as against the firm property. The action having been brought against the three copartners, if the attachment was properly issued as against copartnership property, it could .not have been vacated as to Finch and Gugerty.

The attachment under which the Leighton Machine Company

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claims the money in question now stands as only obtained against one of the members of the defendants’ firm. It does not entitle the respondent to have the firm property of the defendants applied on its execution issued to the sheriff subsequent to the levy under the execution issued on the Souls judgment. (Bogart v. Dart, 25 Hun, 395 ; First National Bank v. Wallace, 4 App. Div. 382 .)

Under the attachment issued to the sheriff in the action in which the respondent was plaintiff, gnd which now remains as an attachment against one of the members of the firm of D. C. Cornell & Co., the officer was authorized to levy upon and take possession of the firm property; but he could only sell on an execution issued in such action, so far as any right was derived from the attachment, the individual property of said Cornell, and his interest in the firm property. (Smith v. Orser, 42 N. Y. 132 ; Atkins v. Saxton, 6 Wkly. Dig. 210 ; 1 Rumsey’s Pr. 528.)

We conclude that the plaintiff Souls, under his execution, has a prior claim to the money in the hands of the sheriff, and hence that the court below erred in denying his motion.

The order should be reversed, with costs and disbursements, and the motion granted, with costs.

All concur.

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

Cases cited

Smith v. Orser 42 N. Y. 132 N.Y. 1870-03-18 p. 163