Bowen v. Bull — 35 N.Y. St. Rep. 480

Majority

p. 480

Henry C. Bowen, App’lt, v. William L. Bull, President of the N. Y. Stock Exchange, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Attachment—Pboof of levy.

The only proof of the levy of an attachment upon the seat or membership of the defendant named therein in a stock exchange, was the evidence

p. 481

of the attorney for the plaintiffs in the attachment action that it had heen regularly levied. His testimony as to the place where and the manner in which the levy was made is contradictory, and it was evident that he had no recollection of the method of levying the attachment, but was swearing to a conclusion. Held, that a finding that there had been a levy would not have been justified by this evidence.

Appeal from judgment entered upon the report of a referee.

George C. Holt, for app’lt; L. C. Ledyard, for resp’t.

This action was brought against the New York Stock Exchange to recover damages for its refusal to recognize claimed rights of the plaintiff in a seat or membership in the exchange.

The questions involved are whether a membership in a stock exchange is property capable of being attached and sold, and ápplied to the payment of debts by creditors, and, secondly, if it is such property, whether there was any valid levy and sale of the seat in the Open Board of Brokers, which formed the foundation of the plaintiff’s claim.

It appeared that in 1868-an action was commenced by Henry Pitch and Edward E. Bowen against John Perry, Jr., then a member of the Open Board of Brokers. This board was an unincorporated association, doing business similar to that of the New York Stock Exchange, and was after the commencement of said action consolidated with it. An attachment was issued against the property of Perry in the action above mentioned, and it is claimed that a levy was made upon the seat of the then defendant in the Open Board of Brokers under the attachment. Judgment was entered by default and execution issued, and thereupon the sheriff executed and delivered to the plaintiff in the present action-a bill of sale of Perry’s interest in such membership.

The only evidence of the attempted sale of this seat is contained in the recitals of the bill of sale by the sheriff, no proof whatever upon the subject having been offered. And the only evidence of the levy of the attachment offered was that of the attorney for the plaintiffs in the action in which the attachment was issued. His testimony utterly fails to establish any such levy. All that he could swear to was the conclusion that the attachment had been regularly levied.

In one place he states the levy to have been made at the office of the president of the Open Board of Brokers, locating the office at a place which was not the place of business of the board. He then defines his idea of a regular levying of the attachment upon a share or seat of the board in such a way that it makes it necessary that the levy should be made in the board room" of the Open Board of Brokers. And the witness seems to be equal to the occasion and shifts his evidence to meet his definition. This evidence was utterly unreliable. It was evident that the witness was swearing to a conclusion and had no recollection of the method of levying the attachment, and did not know whether it was to be levied upon this property as though it was a chattel capable of being touched and taken possession of, or

p. 482

whether it was to be levied upon as though it was a share of stock in an association. His testimony evidently was intended to meet either horn of the dilemma.

We think the referee would not have been justified by such evidence in finding that there had been any levy of this attachment.

This is the foundation of the plaintiff’s claim, and without considering other questions which may be presented by the record, we think for this reason alone, if for no other, the report of the referee should be confirmed.

Judgment affirmed, with costs.

Brady and Daniels, JJ., concur.