Majority
p. 3Harvey S. Almy et al., Appellants, against Horace K. Thurber et al., Respondents. (Decided March 15th, 1883.)
Headnote
A person having property of or being indebted to another against whom a warrant of attachment has issued, who gives to the sheriff holding the warrant the certificate, as to the amount, nature, &c., of the property, required by section 650 of the Code of Civil Procedure, is not thereby estopped from showing an error in the amount stated in the certificate, even in an action brought on the faith of such statement, by the sheriff or the plaintiff in the attachment suit, under section 655 or section 677 of the Code.Appeal from a judgment of this court entered upon the verdict of a jury, and from an order denying a motion for a new trial.
The action was brought by Harvey S. Almy and George . W. Almy, copartners constituting the firm of Almy & Co., joined with Peter Bowe, sheriff of the city and county of New York, as plaintiffs, pursuant to section 677 of the Code of Civil Procedure, to recover from H. K. & F. B. Thurber & Co. property in their possession attached by the sheriff in an action by his'co-plaintiffs against John Gomard & Co., of Cura go a. The attachment against the latter as non-
residents was served upon said defendants, Thurber & Co., on May 10th, 1881, and a certificate as to property or moneys in their hands belonging to the debtors, J. Gomard & Co., was demanded from them pursuant to section 650 of the Code. On May 28th, 1881, they delivered to the sheriff the following statement:
“New York, May 28th, 1881.
“Messrs. John Gomard & Co., Curagoa, to H. K. & F. B-. Thurber & Co., Dr.
Importers and wholesale grocers, West Broadway, Reade and Hudson streets, P. O. box 3895:
Cr., April 26th, by cash ..... $2,003 63
Dr., May 10th, to cash . . 20
May 13th, to mdse . • . $1,882 48 1,882 68
120 95
H. K. & F. B. Thurber & Co.”
(Signed)
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This action was brought to recover $2,003.63, as the cash certified to be on hand to the credit of the debtors, John Gomard & Co., on May 10th, 1881,when the attachment was levied. It was shown on the trial that on May 10th, 1881, there was but $120.95 in the hands of defendants, Thurber & Co., to the credit of the debtors, J. Gomard & Co., the merchandise charged at $1,882.48 having been sold and delivered to the debtors by defendants sometime prior to that date. Plaintiffs claimed that defendants were estopped from showing those facts by their statement delivered to the sheriff in which the merchandise was charged on May 13th, 1881, because, on receipt of such statement, the sheriff, relying thereon, made no further effort to find property subject to the attachment. Defendants contended that the statement alleged a balance of $120.95 only to be subject to the attachment. The court left it to the jury to say if the certificate was given for the purpose of certifying they had $120.95 in their hands at the time of the levy. The jury found for plaintiffs, $120.95. A motion by plaintiffs for a new trial was denied, and judgment for plaintiffs was entered on the verdict. From the judgment and the order denying their motion for a new trial the plaintiffs appealed.
Edward B. Merrill and Henry B. Hotchkiss, for appellants.
More, Arlington More, for respondents.
[After stating the facts as above.]—It was shown by evidence that there was an error in the statement delivered to the sheriff by defendants, by which it appeared that the charge for merchandise in their favor against the defendants in the attachment accrued after the levy; whereas, in fact, such charge accrued long prior to the' levy; and that at the date of levy, May 10th, 1881, there was but $120.95 due John Gomard & Co., the defendants in the attachment, from these defendants. Defendants were not estopped from showing such error in an
p. 5
. action brought on the faith of their statement. The certificate required of a person who has property of the attachment debtor or is indebted to him, by section 650, is evidently intended as the basis of an action under sections 655 and 677 against such person by the sheriff or the plaintiff in the attachment. By section 651 it is provided that if such person refuses to give the certificate, or gives a false or insufficient certificate, he may be required to submit to an examination under oath concerning the same. A certificate voluntarily given is of no higher character than a statement under oath made upon such an examination, yet it would not be claimed that a person so examined, if mistaken in his testimony, could not correct it or show the truth when subsequently sued upon it. The object of the certificate or examination is apparent from the statute; it is to be used as evidence only; and the sheriff and plaintiff are not justified in using it for any other purpose—e.g., as a representation of fact upon which they may rely in omitting to secure the demand in suit. The certificate or examination will be prima fade evidence against the party giving it, in an action by the sheriff or the attaching creditor, but is no more conclusive than is an examination of a party in anticipation of an action under section 870 of the Code. The doctrine of estoppel applies only to voluntary representations; declarations, admissions and acts, and has not been extended, so far as I can discover, to declarations exacted by statute. A party certifying or testifying under stress of the law has not the option of speaking or holding his tongue; he is required to give testimony, and is to be indulged, therefore, as any other witness, and allowed to correct honest mistakes in his testimony when confronted -with it.
The judgment should be affirmed, with costs.
Vast Bkunt and Beach, JJ., concurred.
Judgment and order affirmed, with costs.