Shaffer v. Mason — 43 Barb. 501

Majority

p. 501

Shaffer vs. Mason.

Headnote

An attachment can not issue as a provisional remedy, under section 227 of the code, in an action of trespass for taking and carrying away personal property, the claim being for damages not ascertained, but to be assessed by a jury.

ms IS is an action of trespass, for taking and carrying away X certain articles of personal property. An attachment was issued under the code, on affidavit, alleging the trespass, and that the property was of the value of seven hundred dollars, and that the defendant was a non-resident. The attachment directed property to be attached sufficient to satisfy the plaintiff’s demand of seven hundred dollars. On motion of the defendant, the attachment was vacated at special term, on the ground that the code does not authorize an attachment, as a provisional remedy, in an action of tort. The plaintiff appealed.

L. S. Chatfield, for the appellant.

D. McMahon, for the respondent.

I think the order at special term vacating the attachment was clearly right. The words of section 227 of the code are certainly very broad. That section allows the property of the defendant to be attached “in the manner hereinafter prescribed,” in an action “for the recovery of the money” against a defendant, who is not a resident of this state. Prior to 1857, this section read “in an action for the recovery of money.” The section was amended in 1857, by inserting the article the between of and money, and by inserting other words in another part of the section, allowing an attachment to issue on the ground that the defendant was about to remove, secrete or dispose of his property with intent to defraud his creditors. Both amendments may be considered as a legislative construction of the section, to the effect that the attachment was allowed only where the action was for a money demand on contract.

If any significancy or effect is to be given to the amendment by inserting the definite article the, the insertion of that word was intended to limit or define the general signification of the word money, so that the words “the money” must now mean the money demanded in the summons in the action. (See § 129, sub. 1.)

The other amendment, in 1857, also goes to show that the attachment was to issue only in cases where it was claimed by the plaintiff that the defendant was indebted to him.

But independent of these considerations I am satisfied, upon looking at the whole of section 227, and other sections, particularly sections 229, 231, that it was not the intention that the attachment should issue in an action for a trespass, where the claim is for damages to be assessed by a jury. By section 229, “the warrant may be issued whenever it shall appear,by affidavit that a cause of action exists against such defendant', specifying the amount of the claim and the grounds thereof,” &c. These words plainly imply that the attachment is to issue only when the plaintiff can conscientiously specify and swear to the amount of his claim. How

p. 503

can a plaintiff do that, in an action for an assault and battery, or libel, or trespass de bonis, when the very object of the action is, to have the damages (the amount he is entitled to recover) assessed and determined for him ? Can it be supposed that the legislature intended, in such a case, that the plaintiff might preliminarily assess his own damages, at any figure he chose, and, having thus specified it, swear to it, as a claim which he has against the defendant for so much money; I think not. I think the code of procedure never contemplated such an extraordinary proceeding.

By section 231, too, the sheriff is to attach sufficient of the property of the defendant to satisfy the plaintiff’s demand according to the complaint, together with costs and expenses. Without referring to other sections of the code,I will say that I concur generally in the views expressed by Justice Hogeboom, in Gordon v. Gaffey, (11 Abbott’s Pr. R. 1,) and that I think his decision in that case was right.

Mr. Justice James, in Floyd v. Blake, (19 How. Pr. R. 542,) cites the beautiful poetical extravaganza, “He who steals my purse steals trash,” &c., to show that a “good name,” being so much more valuable than riches, it was reasonable that the law should afford “ the same facilities for enforcing a judgment for an assault upon character, that it does for an assault upon the purse.” How as my reverence for Shakspeare is too great to permit me to deny that he may be cited even on a question of the construction of a section of the code, I will say that Shakspeare contrasts so forcibly and beautifully the stealing of a purse with the filching of a good name, and that the question is, whether the legislature intended a plaintiff in an action for a libel or slander to determine preliminarily that his name was good, and that he might set his own value upon it, and fix and swear to any amount in dollars that he chose, as the damages for filching it, and thus have sufficient of the property of the defendant attached at the commencement of the .action, to secure the payment of that amount.

p. 504

[New York General Term,

February 6, 1865.

It is strange that the very ground upon which Judge Edmonds discharged the attachment in Hernstien v. Mat thewson, (5 How. Pr. R. 196,) did not lead him to doubt Ilia correctness of his construction of section 227 of the code.

I think the order appealed from should be affirmed, with costs.

Where the action is to recover the value of personal property, I see no reason why an attachment may not issue. I concur that the attachment should not issue in actions for torts against the person.

The words “ creditors” can not be applied to the plaintiff in an action of tort.

Order affirmed.

Ingraham, Clerke and Sutherland, Justices.]