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India Rubber Co. v. Katz

65 A.D. 349 Court N.Y. App. Div. English

Delivered by Hatch, J. :

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p. 349
India Rubber Company, Appellant, v. Edward A. Katz and William F. Grell, as Sheriff of the County of New York, Substituted in Place of the American Bicycle Company, Respondents.

Headnote

Foreign, corporation transacting business in the State of Sew York—its residence— a debt due by it to another foreign corporation may be attached—interpleader of the attaching creditor — levy on money paid into court.
A foreign corporation transacting business within the State of New York is not regarded as a non-resident as to the business which it carries on within the jurisdiction of the courts of the State of New York.
Where a foreign corporation, having no office in the State of New York, furnishes to another foreign corporation, having an office in the State of New York and engaged in the transaction of business within that State, goods used in the course of such business, the debt thereby contracted may be attached in a suit brought by a resident of the State of New York against the creditor corporation.
Where, in an action brought by the creditor corporation against the debtor corporation to recover the amount of the debt, the debtor corporation sets up the levy under the attachment and obtains an order interpleading the attachment creditor and the sheriff, upon payment of the money to the chamberlain of the city of New York, the attachment creditor may levy upon the money in the hands of the chamberlain.
Appeal by the plaintiff, India Rubber Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of April, 1901, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 26th day of March, 1901, granting an additional allowance of costs to each of the defendants.
p. 350
This action was originally brought by the plaintiff, India .Rubber Company, a foreign corporation, organized in the State of Ohio, and having no office in this State, against the American Bicycle Company, also a foreign corporation, organized under the laws of New Jersey, but having an office for and transacting business in the city of New York, to recover the sum of $28,685.09 for goods sold and delivered by the plaintiff to such defendant.
The American Bicycle Company admitted its indebtedness to the plaintiff and presented a petition to the court so admitting, but alleging that the defendants herein claimed said sum by reason of a levy under a warrant of attachment in an action brought by Edward A. Katz, and asking that it be allowed to deposit the amount with the chamberlain of the city of New York, and that it be discharged from all liability, and that the attaching creditor, Katz, and the sheriff levying the attachment, be substituted as defendants in the action in its place and stead. This petition was granted, and an order was made permitting the deposit cf the amount of the debt with the city chamberlain, and directing that Edward A. Katz and the sheriff, William F. Grell, be substituted as parties defendant herein. The deposit was made pursuant to the order, and the plaintiff afterwards served an amended complaint upon the present defendants, each of whom appeared by attorney and set up the attachment suit and a levy thereunder before the commencement of this action.
After the deposit was made with the city chamberlain the defendant sheriff, pursuant to the attachment mentioned, levied upon said sum so deposited in the hands of the chamberlain. A motion was made by this plaintiff in the action brought by Katz against it to set .aside the levy upon the debt of the American Bicycle Company to it, but the motion was denied, and upon an appeal to this court from the order denying the motion the order was affirmed. The defendant sheriff has not attempted to take possession of the moneys levied upon in the hands of the chamberlain, and has not attempted to enforce the levy made except by serving a notice of attachment upon the American Bicycle Company and upon the chamberlain. It was not contended but that the attachment issued in the action by Katz' against the plaintiff is valid.
There was no dispute as to the facts in the case, and-it was sub
p. 351
mitted and decided npon an agreed statement of facts. The trial court directed a dismissal of the complaint on the merits, and judgment was entered accordingly. Motions were made by the defendants for extra allowances, which were granted, and from the judgment and the order granting such allowances this appeal is taken.
Joseph Klvng, for the appellant.
Mark H. Ellison, for the respondent Katz.
Charles F. Wells, for the respondent G-rell.

The appellant contends that the levy made under the attachment in favor of the defendant Katz .was invalid for the reason that both the debtor and creditor were foreign corporations, and that, therefore, no levy under an attachment granted by the courts of this State is authorized. Reliance is placed in support of this contention upon the case of Carr v. Corcoran ( 44 App. Div. 97 ), but in that case both the debtor and the creditor were non-residents, the res was not within the jurisdiction of the court, and under such circumstances it was held 'that a levy was unauthorized.

That case recognizes, however, that where the res, the tiling to be levied upon, is within the jurisdiction of the court, it may be attached, and in Simpson v. Jersey City Contracting Co. ( 165 N. Y. 193 ) it was held that the stock of a foreign corporation belonging to a non-resident but in the possession of a resident of this State was subject to levy under an attachment. In the present case the defendant Katz is a resident of this State, and the money represented by the debt is also within the jurisdiction of this court; consequently, within both of the above authorities the attachment and levy were authorized. Aside from these considerations it appears that the American Bicycle Company had an office, was engaged in the transaction of business within the State, and the debt which was the subject of the attachment was incurred by it in the course of such business. As to a corporation so situated, a different rule prevails from that which obtains where the foreign corporation does no business within the jurisdiction of the court. The latter is to be regarded as a non-resident exclusively, and the rule announced in Carr v. Corcoran (supra) and in Douglass v. Phenix Ins. Co.

p. 352
( 138 N. Y. 209 ) applies. As to the former, however, it is not regarded as a non-resident as to the business which it carries on within the court’s jurisdiction, and the situs of the debt which it owes, incurred in connection with the business so transacted, is of the place where the business is done, and the corporation to this extent may be regarded as a resident, the debt as having its situs here, and, as both the residence and the res come within the jurisdiction of the court the attachment is enforcible. In principle such a case is not different from that where a foreign corporation brings or sends its property within the court’s jurisdiction, and thereby makes it subject to- the levy of an attachment in favor of a citizen residing within the jurisdiction. In the present case the corporation is here doing business, the plaintiff sells property to it and delivers it at its place of business within this State; thereby the debt is created ; that debt is due here and may be attached as may any other debt, and as to it the debtor corporation is to be treated as a resident. Besides, in this case, this court denied a motion to vacate the attachment and set aside the levy thereunder, and to reach that result necessitated a holding that both were valid.

It is further contended that when the money was paid over to the chamberlain it was in custodia legis, and, therefore, not the subject of a levy. But it was so paid in for the very purpose of furnishing security for the payment of the debt for which the attachment issued, and it was in custody to meet this claim. Under such circumstances it is subject to levy. (Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145 ; Wehle v. Conner, 83 id. 231 .)

No sound distinction can be drawn between money deposited voluntarily by the attachment debtor in the custody of the law and money placed there by order of the court to meet the debt which the attachment represents; both are alike subject to levy thereunder.

The extra allowances seem to have been proper in amount and are authorized by law.

It follows that the judgment and orders appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment and orders affirmed, with costs.

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