Lang v. Otis — 1 N.Y. City Ct. Rep. 241

Majority

p. 241

New York Marine Court. Special Term

March, 1880.

ROBERT M. LANG against DWIGHT P. OTIS.

Headnote

Construction of sections 1,418 and 1,414 of the Code of Civil Procedure. The provisions for the release of a levy on the interest of a defendant in a partnership do uot apply to a case where the property is levied upon as the sole individual property of such defendant.

A judgment debtor may own individual property, and at the same time have an interest as copartner in a firm. Where the individual property of such a debtor is levied upon, the judgment creditor is entitled to pursue his legal remedies in respect thereto, as if such debtor had no partner. But if the creditor seeks to reach the debtor’s interest in the co-partnership of which he is a member, then section 1,413 of the Code of Civil Procedure permits the partners of the debtor to apply to the court, upon an affidavit showing the facts, for an order directing the officer

p. 242

to release the property, and to deliver it to the applicants, upon giving the undertaking provided for by the following section (1,414). The form of the undertaking prescribed by the section last referred to shows that the preceding section was only intended to apply to the case of a levy upon the debtor’s interest in a co-partnership firm, or in its joint property, and not to a case like the present, where the officer has levied upon piano cases, as the sole and individual property of the debtor.

The undertaking provided by section 1,414 (supra) does not contemplate such a levy, and furnishes no security to the creditor thereon. It follows that the order directing a discharge of the levy was improvidently granted, and must be vacated.

Note.—Affirmed on appeal.