Steuben County Bank v. Alberger — 61 How. Pr. 227

Majority

p. 227

COURT OF APPEALS.

The Steuben County Bank, respondent, agt. John L. Alberger and others, and Louisa F. Alberger, appellants.

Headnote

Attachment—Decision of a motion to vacate, founded upon a judgment and execution is no ba/r to a second, motion to vacate, founded upon the partg’o right as grantee under a deed—Bes adjudicata — how fa/)' it applies to decisions on motions.

Where a motion was made by A., founded upon her judgment and execution, to vacate the attachment on the ground of the insufficiency .of the proofs upon which it was granted, which was denied on the ground that the judgment was irregular, and that she did not acquire a lieq upon the attached property, and, therefore, could not make the motion', A. then made a new motion to vacate the same attachment, alleging that she had a.deed of the attached real estate, made upon the same day her judgment was rendered, and that when she made the former motion she supposed her judgment was a "lien upon the land. She.had previously applied to the special term for leave to renew the former motion, for the same reasoif, and leave was refused ;

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Held, that the present motion not being founded upon her right as lienor, to move to vacate the attachment, but upon her right as grantee under a deed, was not in the nature of an application to review the question decided on the first motion and the decision on that motion, that she was not a lienor under her judgment and execution, was in no way inconsistent with' a new motion founded upon her ownership of the land attached.

The fact that she might, on the first motion, have proceeded on this ground also, did not preclude her from resorting to an independent motion to vacate, after the first motion was denied.

The doctrine that a motion once denied cannot be renewed as a matter of right and without leave of the court, except upon facts arising subsequent to the decision of the former motion, cannot apply to a case where the party proceeds in the second motion upon a distinct property interest and right from that involved in the first motion. The decision of the former motion is no bar to this motion.

.The doctrine of res adjudícala does not apply with the same strictness to decisions on motions as to judgments :

Held, that the order of the general and special term should be reversed, and an order entered vacating the attachment as against the land embraced in the deed (Modifying decision in same case, 78 N. Y., 252 ).

January, 1881.

On the 29th day of ¡November, 1877, the county judge of Steuben county granted an attachment in this action against the property of the defendants Alberger, upon affidavits tending to show that they were about to transfer their joint and individual property to defraud plaintiff, which ground was duly recited in the warrant. On the following day the sheriff of ¡Miagara county seized a large amount of real and personal property of the defendant Samuel F. Alberger, under this attachment, and still holds the real estate thereunder. On the 4th day of December, 1877, tbis plaintiff recovered judgment in this action against the defendants Alberger for §14,087.23, which was docketed in Erie and ¡Miagara counties the same day, and on the same day executions thereon Were issued and delivered to the sheriffs of Erie and ¡Miagara counties for service. Louisa F. Alberger thereupon moved at special term, in February, 1878, to vacate said

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attachment for alleged insufficiency of the papers upon which the same was granted, and set forth in her moving affidavit that she had acquired a lien upon the attached real and personal property subsequent to the levying of the attachment by virtue of a judgment and execution in her favor against said Samuel F. Alberger. When this motion caine on to be heal’d, the plaintiff was permitted to use additional affidavits to sustain the attachment, and the motion was denied without passing upon the sufficiency of the original affidavits. The court of appeals reversed this order for error in admitting the additional affidavits, and remitted the motion to special term for reargument, and the motion was duly brought on for argument at the December special term, 1878 (55 Sow., 481). The special term again denied the motion on the ground, that the judgment of Mrs. Alberger was irregular, and that she did not acquire a lien upon the attached property, and, therefore, could not make the motion. Upon appeal from this order, the- general term affirmed it on the ground, that the papers upon which the attachment was granted, were sufficient to sustain the same. The court of appeals held that the original affidavits were not sufficient as against S. F. Alberger, and reversed both orders and vacated the attachment as to property of Samuel F. Alberger. Before the entry of this order, however, a motion for reargument was made in the court of appeals, and the decision, last mentioned, was so modified as to vacate the attachment as to lien only which Mrs. Alberger acquired upon the attached property under her judgment and execution, and leaving the attachment unaffected as to all other property of Samuel F. Alberger which was attached. The attachment was, therefore, by this order of the court of appeals, vacated as to a part of the property mentioned in the motion affidavit, and left in force as to the residue. Mrs. Alberger then made a new motion at special term, to vacate the same attachment, alleging that she had a deed of the attached real estate, made upon the same day her judgment was rendered, and that when she made the

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former motion, she supposed her judgment was a lien upon the land. She had previously applied to the special term for leave to renew the former motion, for the same reason, and leave was refused. She now claims she can make the motion as a matter of right, without obtaining leave to renew, and notwithstanding the fact that an application for leave to renew' has been denied. The special term denied her present motion, on the ground that the former motion was a bar, and that the motion could not be made without leave of the court. The general term, at the April term, 1880, affirmed the order, and from that order this appeal is taken by Mrs. Alberger.

J. F. Parkhurst, for plaintiff, respondent.

I. The order is not appealable because it was discretionary and does not affect a substantial right within the meaning of the Code. This court .has decided that at the time Mrs. Alberger made her first motion to vacate this attachment, she had a full and complete remely by which she might have vacated the attachment in one motion as to all the attached property in which she claimed an interest. She had title to the land, an execution lien upon the personal property, and claimed to have also a judgment lien upon the attached real estate. There were two parcels of land and various articles of personal property, all in the custody of the sheriff, under plaintiff’s attachment. Instead of embodying all her claims and objections in one motion, she made a motion which, as it now appears, was for a part of the property only, and now claims a strict legal right to make a new motion to vacate the attachment, as to the balance of the property, without leave of the court. It is very plain that if she had the right to make two motions, she had just as good a right to make twenty or an hundred motions to vacate the attachment. The question, therefore, presented to the supreme court was, whether a party having a plain and adequate remedy, by one motion, to obtain all the relief to which she was entitled, had a strict legal right to make an infinite subdivision of her

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remedy without leave of the court, and in defiance -of its order. The sufficiency of the affidavits, or the right of Mrs. Alberger to vacate the attachment, was not the real question then before the court. The real question was whether she might do it by a multitude or succession of motions instead of doing it by one. It was purely a question of procedure in the supreme court. In this view it cannot be doubted that the supreme court had the right to grant or refuse her this privilege, in its discretion. If otherwise, the supreme court would be entirely at the mercy of its suitors, in such a case, and powerless to prevent a multitude of motions for relief when one motion would serve the same purpose. That court has always exercised, without question, the right to allow or refuse, in its discretion, the privilege of renewing a motion once denied, and without any reference whatever to the ' merits of the original motion (Mianney agt. Blogg, 41 N. Y., 521 ), and such an order is not appealable. This order was made then in the exercise of the legal discretion of the supreme court as to procedure therein, and is not appealable (Selden agt. Del. and Hud. Canal Co., 29 N. Y., 634 ; In matter of Reeve, 34 N. Y., 359 ; Tanton agt. Groh, 8 Abb. Pr. [N. S.], 385; King agt. Merchants' Exchange Co., 5 N. Y., 547 ; Hoe agt. Sanborn, 36 N. Y., 93 ; Fort agt. Bard., 1 N. Y. —; 43 id., 426; Id., 125; Thomas agt. Fleury, 26 N. Y., 26 ; Carpenter agt. Haynes, 1 Cod. R. [N. S.], 414; see also German Am. Bank agt. Morris Run Coal Co., 74 N. Y., 60 ; People agt. N. Y. C. R. R. Co., 29 N. Y., 418 ; Martin agt. Windsor Hotel Co., 53 How., 422 ; Howell agt. Mills, 53 N. Y., 322 ; Hasbrouck agt. Kingston Board of Health, 3 Keyes, 483). But it also follows from this that the order does not affect a “ substantial right,” and for that reason is not appealable.

II. The former motion made by Mrs. Alberger, to vacate this attachment, was for the same relief asked upon this motion, and is a bar to this motion. The moving affidavit of Mrs. Alberger, upon the former motion, alleged a lien under

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her judgment and execution upon the same property referred to in her affidavit upon this motion, and as a claimant of the same property she now seeks by a second motion to vacate the plaintiff’s attachment as to the same property. We insist that section 682 contemplates but one motion by any creditor against an attachment. It cannot mean that a multitude of motions may be made. A creditor, who has a number of claims or liens which he has acquired upon the attached property, can make but one motion against the attachment, and he must rest that motion upon all his claims or liens. He cannot make a succession of motions for precisely the same relief against an attachment.

III. Such a motion cannot be made without leave of the court, and the decision of the special term in December, 1877, denying leave to renew the motion, is a bar. In the statement of this proposition, we have referred to this as a renewal of the former motion by Mrs. Alberger. It is for the same relief, and founded upon an alleged interest in the same property. The other motion was decided upon the merits, and cannot be renewed without leave of court, even upon fresh papers presenting further evidence (Shultze agt. Rodwald, 1 Abb. [N. C.], 365; Bascom agt. Fealzer, 2 How., 16 ; Ray agt. Connor, 3 Edw. Ch., 499 ). It is a well settled proposition that a motion once denied cannot be renewed as a matter of right, except upon a different state of facts arising subsequent to the decision of the former motion. Bank of Havana agt. Moore, 5 Hun, 624 ; Belmont agt. Erie R. R. Co., 52 Barb., 637 ; Mills agt. Roaewdld, 13 Hun, 439 ; Smith agt. Spaulding, 3 Rob., 615 ). If new facts had arisen since the first motion was made, entitling her to the relief asked, the motion might be made without leave to renew (Ramsey agt. Erie R. R. Co., 57 Barb., 450 ; Ray agt. Connor, 3 Edw. Ch., 478 ; Willett agt. Faqueweather, 1 Barb., 72 ; Smith agt. Spaulding, 3 Rob., 615 ). The case of Pattison agt. Brown ( 12 Abb., 142 ) holds that a renewal of a motion to open a judgment taken by default cannot be entertained on the

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ground of a defense which was known to the defendants when the original motion was made. It should have been stated in the first motion. In Desmond agt. Wolf (6 N. Y. Leg. Ob. 389), a plaintiff moved to set aside a demurrer as irregular and failing in that, moved to set aside as frivolous, and it was held the second motion could not be entertained without leave of the court (See, also, Schlaman agt. Myerstein, 19 How., 412 ).

IV. At the time of the motion Mrs. Alberger had no interest in the attached property, and was not entitled to make the motion. The copy of affidavit served upon plaintiff’s attorney, did not allege any ownership by Mrs. Alberger of the farm in Miagara county. It is claimed, however, that the omission was a clerical error, and that the original affidavit did allege that fact. But even if we assume that Mrs. Alberger is not bound by the copy as served, we insist that plaintiff has shown that she had no interest in the land at the time of the motion. We show by the affidavits of McIntyre and Murphy that for the past six months Mrs. Alberger has resided in Buffalo, more than twelve miles distant from the property, and that she is not now in the possession of the same, and that Samuel F. Alberger is now in possession of the property. This fact would overcome any presumption of present ownership in Mrs. Alberger, even if such was raised by the form of her allegation (Hill agt. Draper, 10 Barb., 454 ; Blunt agt. Aiken, 15 Wend., 522 ; Brown agt. Bowen, 30 N. Y., 512 ). And there is no presumption of tenancy (Blunt agt. Aiken, supra). Besides that we prove by the affidavit of Garland, the declaration of Mrs-. Alberger, Movember 21, 1819, that since she swore to her motion papers, she had conveyed this land to her daughter, and then had no interest in it whatever.

V. The original affidavits together with the affidavits of Mrs. Alberger and Mr. Bice, in the moving papers, are sufficient to sustain the attachment, and plaintiff may use the facts stated in the moving papers to sustain the attachment

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and defeat the motion. The question presented upon this motion is, whether the original affidavits together with the affidavits of Mrs. Alberger and Mr. Rice are sufficient to sustain the attachment. It is not necessary, for the purpose of obtaining an attachment, to furnish such proof as is deemed legal evidence upon the trial of an action. Affidavits upon information and belief have been repeatedly held to authorize the issuing and support of such process, especially when the sources of information are stated (Peel agt. Elliott, 16 How., 481 ; Matter of Bliss, 7 Hill, 187 ; Noble agt. Halliday, 1 Com., 330-336 ; Matter of Fitch, 2 Wend., 298 ; Morgan agt. Avery, 7 Barb., 656 ). The statute authorizing the granting an attachment requires proof only “ to the satisfaction of the judge ” granting the same. And, under a statute of similar requirement, the oath of two witnesses that they believed, &c., without stating any ground of belief was held sufficient (Matter of Fitch, 2 Wend., 298 ; Noble agt. Halliday, 1 Com., 336 ; Matter of Haynes, 18 Wend., 614 ). The court, in the latter case, and in many others cited, say that statements made upon information and belief are given greater force as proof by the omission to deny or explain them (Smith agt. Frank, 4 Rob., 628 ; Wolf agt. Brower, 5 Rob., 602 -604). And in such case the plaintiff is entitled to all intendments and inferences which may be drawn- from the statement (Thompson agt. Erie R. R. Co., 9 Abb. [N. S.], 212-227; Livermore agt. Rhodes, 27 How., 507 ; Morgan agt. Avery, 7 Barb., 633 ).

A. C. Rice, for appellant.

I. The court of appeals have decided that the original affidavits were insufficient, and contained no evidence giving the judge jurisdiction to issue the attachment. See opinion printed in these points. As the special term put its decision upon one specified point, we will assume that it decided against the plaintiff on all other grounds, and the decision on the facts, though not conclusive, should be controlling. Ro affidavits could be used to support the original affidavits {See

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this case, 56 How., 345 ). Whatever facts appeared in affidavits read for other and proper purposes are presumed to have been used for that purpose only, and were not considered for the improper purpose; especially as the court put its decision upon a definite point (See opinion of count of appeals, 79 N. Y., 252 ).

II. Was the first motion a bar to the second? We think not. It was founded upon a specific title, the judgment and execution. It could not effect the attachment as to the real estate, as the judgment was not a lien upon the real estate. The order granting the motion did not and could not extend beyond the foundation of the motion. The second motion is founded upon an independent title, was made in season and was not in any wise connected with the subject matter of the first motion. The first was granted, and if by accident or inadvertence Mrs. Alberger did not include in her first motion papers the separate title she had for a separate and distinct parcel of property affected by the attachment, it would be a mockery of justice to say that the granting of the relief in the first motion should be a bar to relief as to all other property held by r distinct title. The rule that a motion once denied on the merits cannot be renewed on the same facts, without leave of the court, is not established by statute or the standing rules of the court, but is a rule of common-law practice, and has never been applied in a case where one of two motions relating to distinct parcels of property has been granted. A very different rule is ordinarily supposed to exist in such cases. When the property and the title by which it is held are distinct, but the ground of the motion is the same, the granting of one motion is supposed to be conclusive against the defeated party, so far as the ground for the motion is in question. In this case the plaintiff is not at liberty on this motion to contest the sufficiency of the original affidavits. Mrs. Alberger had a lien upon personal property by virtue of her execution, and owned real estate by a separate title, her deed. She could enforce her lien and her right by separate

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remedies. In the pursuit of either remedy, if she encountered a barrier, she could have it removed if she applied in-season ; and having removed that barrier in the pursuit of one remedy, she is not barred from removing the same obstruction when reached in the pursuit of the other remedy. The common-law rule of practice that a motion once denied on the merits cannot be renewed without leave of the court, has grown up in the last hundred years; and yet in no case, from Davies agt. Cottle, decided in 1789 (3d Term Rep., 405), to the present time, has the rule been applied to a case where a motion has been granted as to a distinct subject matter. I shall not cite the numerous cases reported, but shall assert that upon a careful examination there is not a single case sustaining the decision in this case.

III. It is a well settled rule that a new motion is a matter of right, when based upon facts arising after the first motion (People ex rel Barry agt. Mercein, 3 Hill, 399 ). And this rule has been held to include cases where the facts came to the knowledge of the party after the first motion was made.

When this motion was noticed' for the special term, the first motion, founded upon the judgment and execution in - favor of Louisa F. Alberger, had been denied by the special term on the ground that her judgment was not, by reason of the failure of the clerk to enter it in the judgment book and other omissions, a valid judgment, and that she acquired no lien by the judgment or execution on the property of Samuel F. Alberger.

The present motion was not founded upon her right as lienor to move to vacate the attachment, but upon her right as grantee of Samuel F. Alberger under the deed of December 3, 1877. The second motion was not, therefore, in the nature of an application to review the question decided on the first motion, and the decision on that motion that she was not a lienor under her judgment and execution was in no way inconsistent with a new motion founded upon her owner

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ship of the land attached. The fact that she might on the first motion have proceeded on this ground also, did not preclude her from resorting to an independent motion to vacate after the first motion was denied.

The rule which forbids the splitting up of a single demand and bringing separate actions at law thereon, has no applicar tion to a proceeding of this character. The grounds of intervention by the-two motions were entirely distinct. The relief sought was also different.

In both motions she sought to vacate the attachment, but in the first she sought to remove it as an obstruction in the way of the enforcement of her judgment and execution, and in the second as a cloud upon her title under the deed. The first motion related both to real and personal property, and the second to real property alone. Under her deed she acquired no right or title to the personal property levied on the execution.

The doctrine that a motion once denied- cannot be renewed as a matter of right and without leave of the court, except upon facts arising subsequent to the decision of the former motion, cannot apply to a case where the party proceeds in the second motion upon a distinct property interest and right from that involved in the first motion. We are, therefore, of opinion that the denial of this motion by the special term, on the ground that no leave to renew the motion having been given, the decision of the former motion was a bar to the second motion, was erroneous. Moreover the doctrine of res adjudicada does not apply with the same strictness to decisions on motions as to judgments.

The general term affirmed the déeision of the special term on the first motion, and this court on appeal granted the motion, and afterwards on the application of the plaintiff, limited its order of reversal so as to vacate the attachment as to Louisa F. Alberger, so far as it affected her rights under her judgment and execution against the individual property of -Samuel F. Alberger. By implication it is said that this

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order affirms the attachment as to all rights existing in Mrs. Alberger when the attachment was issued, except those derived under her judgment and execution. The only question Before this court on that motion, was whether the attachment was valid as against her judgment and execution, and the court decided it was not.

There could have been no intention to affirm the validity of the attachment as against any other title which she may have had against the property attached, as it was vacated for inherent and jurisdictional defects in the attachment proceedings. But it is sufficient to say that when the second motion was noticed, the first motion stood denied, with the denial affirmed by the general term, and Mrs. Alberger had the right to institute a new motion founded upon a different right, which did not involve a review of the decision of the special term on the first motion. The last decision of this court on the first motion disposed of the question as to the sufficiency of the affidavits upon which the attachment was issued adversely to the plaintiff.

We think the order of the general and special term should be reversed, and an order entered vacating the attachment as against the land embraced in Mrs. Alberger’s deed.

The plaintiff can contest in an action the alleged fraud in that conveyance.

All concur, except Earl, J., dissenting, and Miller, J., not voting.

Note. — This case has met with a varied experience, and we have followed it with considerable interest. The attachment was levied upon about $20,000 worth of property, real and personal, of Samuel F. Alberger, one of the defendants. He immediately thereafter conveyed the land to Louisa F. Alberger, and fifteen minutes after that confessed the judgment in'favor of Louisa F. Alberger. The latter then moved as execution and judgment creditor, to vacate the attachment for insufficiency of original affidavits, not mentioning her deed.

The special term held, that under the new Code (secs. 682, 683), additional affidavits might be used by plaintiff, and denied the motion, and the general term so held (See special and general term opinions, 55 How., 481 )..

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The court of appeals held otherwise and reversed the order, and sent the case back to the special term to be heard upon the sufficiency of the original affidavits (See 66 How., 346 ; 75 N. Y., 179 ).

It was then discovered that the judgment by confession, under which motion was made, had never been entered, and the Special term held, that she had no standing as creditor to make such motion.

The general term affirmed this order on the ground that the original affidavits were insufficient.

The court of appeals reversed the order and vacated the attachment {See 78 N. Y., 252 ).

A motion for a reargument was made and the court of appeals modified its decision so as to affect only the lien under which the motion was made, which very substantially changed the decision in 78 New York, 252, for instead of vacating the attachment generally, as in the decision in 78 New York, 252, the court adopted the theory that the motion by a creditor was simply enforcing the lien stated in moving papers, and that the attachment was not vacated as to any other right or lien, in analogy to a creditor’s bill to set aside fraudulent deed {See opinion above).

It was then discovered that the deed which was not referred to in the motion papers, was a little ahead of the judgment (say fifteen minutes), and that, therefore, her judgment was not a lien upon the land.

Her first affidavit alleged a judgment lien upon the land. She then moved upon her deed to vacate, and the special term held the first motion a bar.

This was affirmed by the general term, and as will be seen, reversed by the court of appeals {See opinion abové).

The attachment fight between Mrs. A. and the bank, has been a long and tedious one, having been before twenty-six judges of the state and four times before the court of appeals, including the motion for a reargument.

The modification of the decision in 78 New York, 252, is so important, that we thought it worthy of notice. —[Rep.