First National Bank v. Reinitz — 24 N.Y. St. Rep. 740

Majority

p. 740

First National Bank of Chicago, App’lts, v. Ignatz Reinitz, Resp’ts.

(City Court of New York,

General Term,

Filed April 27, 1889.)

Headnote

1. Attachment—When lien of not divested by judgment-creditor— Code Civ. Pro., §§ 648, 649, 2441.

Plaintiff recovered judgment against defendant January 81, 1889, for a sum of money, and an execution was, on the same day, duly issued. In February, 1889, three attachments were issued against defendant, under which a levy was made on a debt owing to defendant. Certified copies of the attachments were served upon the debtor, who, thereupon, paid over to the sheriff, under the attachments, the sum owing. The plaintiff applied for an order directing the sheriff to apply the amount so received on the execution issued by it. Held, that the plaintiff having failed to pursue

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the remedy on its judgment, given by Code Civil Procedure, section 2441, and the attaching creditors having pursued theirs under Code Civil Procedure, sections 648 and 649, the service of the attachments created a lien on the funds in the sheriff’s hands, which cannot be divested by the plaintiff; that the money is applicable to the attachments under which it was received.

2. Same—Code Civ. Pro., §§ 1406, 1407—Construction.

Sections 1406 and 1407 of the Code Civil Procedure, regulating the order of preference among attaching and execution creditors, does not apply to cases where choses in action or equitable interests of the character in question are taken under attachment; they cannot be levied upon under an execution.

Judgment was recovered herein January 31, 1889, for $1,672.49, and on the same day an execution was issued to the sheriff of the city and county of New York, who still holds it.

In February, 1889, three attachments were issued against the defendant in actions in the supreme court, in which William E. Tefft and others, are plaintiffs, under which attachments a levy was made on a debt of $339.59 owing to the defendant by R. J. Dean & Co.

Certified copies of the attachments, with notices showing the interest levied upon, were served upon R. J. Dean & Co., who thereupon paid over to the sheriff under the attachments, the sum owing, to wit: $339.59, which is still in the sheriff’s hands. The plaintiff applied for an order directing the sheriff to apply the amount so received, on the execution issued by it.

The application was denied and the plaintiff appeals.

Peckham & Tyler, for app’lt; Palmer & Boothly, for resp’t.

Sections 1406 and 1407 of the Code, regulating the order of preference among execution and attaching creditors, does not apply to cases where choses in action, or equitable interests of the character disclosed herein are taken under attachment, for the reason that they cannot be levied upon under an execution. Crocker on Sheriffs, section 452. The Code prescribes the mode of levying on contract debts, or choses in action, under process of attachment (section 648, et seq), but contains no such provision for a levy on such interests upon execution, probably for the reason that the judgment creditor has a more summary and effectual remedy by supplementary proceedings to examine the party owing the debt to the debtor (Code, section 2441), and by obtaining an order permitting the third person to pay over such debt to the sheriff, to be applied on account of the execution, (Code, section 2449.) The plaintiff failed to pursue this statutory remedy on his judgment, and the attaching creditors pursued theirs under sections 648, 649 (supra), and by force of their proceedings the $339.59 reached the sheriff for their benefit.

The execution created no lien on this sum while in the hands of R. J. Dean & Co., and none could be created thereon, except under section 2441, which was not put into use by the judgment-creditor. The service of the attachments created a lien thereon, by force of sections 648, 649,

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which cannot be divested by the judgment-creditor. The money now in the hands of the sheriff is applicable to the attachment under which it was received. The attachments put the fund in his hands, and it cannot be diverted from the purpose for which it was paid in.

If the fund in the sheriff’s hands had arisen from a sale of real or personal property of a character that was liable to seizure upon execution, as well as upon attachment, a different conclusion might have been arrived at, but as the equitable interest levied upon could not have been taken by the sheriff under the plaintiff’s execution without an order, under section 2449 (supra; Crocker on Sheriffs, supra), it is clear that the money in the hands of the sheriff derived through an entirely different course of procedure, instituted by others for their benefit, cannot be made to enure to the advantage of the plaintiff.

For these reasons, the order appealed from, must be affirmed, with costs. _