Schnauffer v. Catterbury — 32 N.Y. St. Rep. 694

Majority

p. 694

Pauline H. Schnauffer, Resp’t, v. Louis Catterbury et al., App’lts.

(New York Common Pleas, General Term

Filed July 18, 1890.)

Headnote

District courts — Judgment—Will not be reversed eor errors as to ATTACHMENT.

The judgment of a district court which does not include the marshal’s fee on attachment will not be reversed because of errors of the justice in regard to the attachment. The jurisdiction of the district courts does not depend on the validity of the attachment proceedings, but on the regularity of the summons and its service.

(Posenthal v. Crouse, 7 Oiv. Pro., 135, followed.)

Appeal from a judgment of the district court in the city of .New York for the tenth judicial district.

J. O. De La Mare, for resp’t; A. Q. Butts, for appl’ts.

The action was commenced by summons dated the 28th day of December, 1889, and returnable January 6, 1890. There is proof that this was personally served. On an affidavit, undertaking, etc., the justice of that court on the 28th of December issued a warrant of attachment against the property of the defendants, which was executed on the same day by one of the marshals of the city of New York. On the return day of the summons the defendants appeared, and on the return of the marshal to the attachment proceedings moved to set them aside on the ground that the affidavit was insufficient to warrant the issuing of the attachment, or to give the court jurisdiction, and also on the ground that the return was false as to the value of the property seized. This motion was denied by the justice, the cause was tried, and at the close of the testimony defendants moved to dismiss the complaint, on the evidence, and also on the grounds stated in moving to dismiss the attachment. This was also denied, and a judgment rendered for the plaintiff. From that judgment this appeal was taken, and the appellants contend that on such appeal they have the right to review the attachment proceedings, and that'the judgment should be reversed if the justice committed any error in regard to them.

This precise question came up in Rosenthal v. Grouse, 7 Civ. Pro., 135, and after mature deliberation was decided adversely to

p. 695

appellants’ contention, this court holding that the warrant of attachment was a provisional remedy merely, not involving the merits of the action or the validity of the process by which the defendant was brought into court, and that it could not be said that the judgment was erroneous, though the justice may have erred in upholding the attachment. In the course of that decision Lang v. Marks, 3 Civ. Pro., 287, was disapproved of, and it was distinctly shown that since the adoption of the Code of Civil Procedure-the jurisdiction of the district courts no longer depends on the validity of attachment proceedings, replevin proceedings, etc., "but upon the regularity of the summons, its service, etc.

The same conclusion has been arrived at by the general term of the supreme court, third department, in McNeary v. Chase, 30 Hun, 491 , and by the county court of Erie county, in Irr v. Schroeder, 6 Civ. Pro., 253. It is true a contrary opinion was announced by the superior court of Buffalo in Fritze v. Pultz, 2 Civ. Pro., 142, but that case was reversed on other grounds, as well as on account of the irregularity in the issuing of the attachment, and the court there assumed that because the justice was in error in that respect there must be a remedy by appeal; while this court held in Rosenthal v. Grouse, supra, that in such a case there was no such remedy, but a casus omissus, just as there had been in § 3191 of the Code until amended, and we feel bound by that decision.

Had the marshal’s fees on the attachment been taxed and included in the judgment, this case might possibly have been distinguished from Rosenthal v. Grouse, but as the judgment rendered, as far as appears from the return, was for the amount of the debt with interest and ordinary costs only, not including marshal’s fees, and was in all other respects justified by the evidence, we think it should be affirmed, with costs.

Allen, J., concurs.