Hayden v. National Bank — 7 N.Y.S. 551

Majority

p. 551

Hayden et al. v. National Bank of the State of New York.

(Supreme Court, General Term, First Department.

November 7, 1889.)

Headnote

L Garnishment—Levy and Lien—Notice.

In an action against the non-resident firm of L. & Bro., money was attached in the hands of defendant bank, and the attachment was served by the sheriff by handing to defendant’s cashier a copy, on which was indorsed a certificate that such paper was a true copy of the original, and that by it the sheriff was commanded to attach all property of L., and that having been informed that said defendant had in its possession money belonging to L., and that defendant was indebted to him,

p. 552

the sheriff attached and requiredsaid money to be delivered to him. At the time of ■delivery of said copy, warrant, and notice, defendant had no property of nor was it indebted to L., but defendant was indebted to the firm of L. & Bro., of which fact the sheriff was informed. This amount was afterwards applied by defendant towards payment of a debt due to it by L. & Bro. Held, that the levy was insufficient under Code Civil Proc. § 649, subd. 3, which requires a notice showing the property attached, to entitle plaintiffs to the application of the balance to the credit of L. & Bro. in defendant’s hands to the payment of their judgment.

3. Same—Knowledge oe Garnishee.

As the statute prescribing the mode of attachment was not complied with, so as to give plaintiffs a lien on the property, the fact that the bank officers knew what the plaintiffs were attempting to do did not aid the attachment.

Appeal from circuit court, New York county.

Action by Peter Hayden, William B. Hayden, Cotton H. Allen, and Bernard Reilly, sheriff of the city and county of New York, against the National Bank of the State of New York, to recover the sum of about $2,000, claimed to have' been attached in defendant’s hands.* Judgment entered upon dismissal of complaint. Plaintiffs appeal.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Martin & Smith, (Geo. A. Strong, of counsel,) for appellants. Shipman, Larocque & Choate, (Joseph Larocque, of counsel,) for respondent.

This action was brought under the provisions of section 677 of the Code, to recover from the defendant the sum of about $2,000, claimed to have been attached in defendant’s hands. The questions involved arise upon the following facts: In the year 1878 the firm of Hayden & Allen, of which firm the plaintiffs are the successors, brought an action in this court against G. H. Loker & Bro. to recover the sum of over $3,000. An attachment was issued against the property of the defendants in said action upon the ground that they were non-residents of the state of New York, and did ¡reside in St. Louis, in the-state of Missouri. On the 9th day of October, 1878, the sheriff attempted to serve the said attachment upon the defendant by handing to its cashier a copy of the attachment, upon which was indorsed a certificate to the effect that such paper was a true copy of the original, and that by it the sheriff was commanded to attach all property of the defendant G. H. Loker within his county then in the possession of the said defendant bank, to take the same in his custody, and that he thereby attached the same, and that having been informed that the said defendant bank had in its possession and under its control certain money belonging to the said defendant, (meaning G. H. Loker,) and that the bank was indebted to him, he particularly attached and required to be delivered to him said money, etc. At the time of the delivery of this copy, warrant, and notice to the bank, it had no property of nor was it indebted to G. H. Loker in any amount, but the bank was indebted to the firm of G. II. Loker & Bro. in the sum of upwards of $2,000, of which fact the deputy-sheriff was informed at the time of the service of the warrant of attachment. This amount was subsequently applied by the bank towards the liquidation of an indebtedness to the bank by the firm of G. H. Loker & Bro.

The question presented, therefore, is whether the delivery by the sheriff’s deputy to the bank’s cashier of the copy, warrant of attachment, and notice above referred to constituted a sufficient levy, under the provisions of the statute, upon the indebtedness of the bank to the firm of G. H. Loker & Bro., and entitled the plaintiffs to the application of the balance at that time to the credit of the firm of G. H. Loker & Bro. towards the payment of their judgment. The Code (section 619, subd. 3) provides the manner in which an attachment shall be levied upon an indebtedness such as that existing upon the part of the bank to G. H. Loker & Bro., which is by leaving a certified copy of the warrant, and a notice showing the property attached, with the person against whom it exists. This requirement evidently was not complied with.

p. 553

There was nothing either upon the face of the attachment or the notice showing that it was intended to attach any property belonging to G. H. Loker & Bro. Upon the contrary, the notice as to the property attached expressly limited the levy to the property of G. H. Loker, and such levy could not be extended, simply because the sheriff intended to levy upon other property. The doctrine in respect to notices which is relied upon by the appellant does not seem to apply to the case at bar. The question here is, have the plaintiffs caused those things to be done which gave them a lien superior to any other wmch might subsequently be acquired upon this indebtedness due from the bank to G. H. Loker & Bro.? The statute certainly has not been complied with, and this has been conceded; but whether the bank officers knew what the plaintiffs were attempting to do seems to be immaterial, as a lien can never be acquired by expressing an intention to procure such lien. The right of subsequent claimants can only be defeated by showing that the necessary steps have been taken which give a preference. Suppose another attachment has been issued and levied regularly upon this indebtedness, could the knowledge of the bank officers as to what the plaintiffs were striving to do by their proceedings defeat this subsequent levy? We think not, as in such a case a lien could not be established. So in the case at bar, the whole basis of the action resting upon the existence of a lien procured by the due levy of the warrant, unless such a lien has been procured good against all claimants the action must fail. It would appear, therefore, that the plaintiffs, not having complied with the statute, did not acquire a lien which they in this action are entitled to enforce. The judgment appealed from should be affirmed, with costs. All concur.