Backus v. Kimball — 41 N.Y. St. Rep. 446

Majority

p. 446

Erastus P. Backus, Sheriff, Resp’t, v. William H. Kimball, Ex’r, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 30, 1891.)

Headnote

Attachment—Action in aid of—Code Civ. Pbo., § 655, subd. 2.

This action is brought by the sheriff, who holds attachments against one B., granted in actions commenced by publication, and in which B. did not appear, to reach a legacy in defendant’s hands payable to B., for the purpose of applying the same to the judgments to be obtained in such actions. Held, that the action was within the letter, but not within the spirit of § 655, subd. 2 of the Code, and hence was not authorized by it, and that the action was not necessary in aid of the attachment, as that could be levied on the legacy by service of a copy and notice.

Appeal from an interlocutory judgment entered in St. Lawrence county upon an order overruling a demurrer to the complaint.

The complaint sets forth the commencement of two actions in the supreme court by different plaintiffs against one Bigelow for the recovery of money upon contracts, the service of the summons in each case by, publication, and the non-appearance and default of the defendant; also, the devise of certain real estate of the value of $500 to the defendant in this action in trust and with power of sale to convert into money and pay to said Bigelow; the issuing of an attachment to the plaintiff in each of said two actions-. Judgment is demanded that this defendant pay the proceeds of said devised property to the plaintiff, to be applied in satisfaction of the judgments which may be obtained in the two actions.

The defendant demurs to the complaint for insufficiency, in that it does not state facts sufficient to constitute a cause of action.

N. L. Robinson, for app’lt; George C. Sawyer, for resp’t.

The complaint is within the letter of the statute. Section 655, Code Civ. Fro., was amended in 1889, by adding thereto, as follows:

“ 2. Where the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chap, fifth of this act; and where the defendant has not appeared in this action (otherwise than specially) but has made default and before entering final judgment, the sheriff may in aid of said, attachment maintain an action hgainst the attachment debtor, and any other person or persons, or against any other person or persons to compel the discovery of anything in action, or other property belonging to the attachmert debtor, and of any money, thing in action, or other property due to him, or held in trust "for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person; and, the sheriff may,

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in aid of said attachment, also maintain any other action against the attachment debtor, and any other person or persons, or against any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above mentioned actions must provide and direct that the said property shall be applied by the sheriff to the satisfaction of any judgment which the plaintiff may obtain in the attachment action.”

But the case stated in the complaint is not within the mischief the amendment was intended to remedy. The plaintiff could levy the attachment without the help of this new provision. Bigelow, the attachment debtor, holds a claim against this defendant for the legacy ; he can enforce the claim by action under § 1819 of the Code, or by proceedings before the surrogate under § 2717. This claim is therefore personal property incapable of manual delivery and can be attached under subd. 3 of § 649 by leaving with the defendant a certified copy of the warrant, with a notice showing that the legacy is the property attached. If there are any facts which would prevent, impair or defeat such a levy or make it inexpedient or impracticable, the complaint does not disclose them.

The purpose of the amendment was to provide a remedy where it was necessary and proper; not to invite or authorize an unnecessary action.

It had been held that an action could not be brought in aid of an attachment to reach property fraudulently transferred by the attachment debtor. Thurber v. Blanck, 50 N. Y., 80 ; Anthony v. Wood, 96 id., 180 ; Throop, etc., Co. v. Smith, 110 id., 83 ; 16 St. Rep., 831 . It followed from this holding that where a non-resident, owning property in this state, fraudulently transferred it, and then was sued for money upon contract, by service of the summons without the state, or by publication, pursuant to an order, and he did not appear in the action, but made default, no jurisdiction was acquired. The person of the defendant was not brought within the jurisdiction of the court of this state, for the laws of the state cannot reach beyond its territorial limits. Freeman v. Alderson, 119 U. S., 185 . The fraudulently transferred property could not be attached; the court had neither person nor thing within its power. Schwinger v. Hickok, 53 N. Y., 280 ; Bartlett v. Spicer, 75 id., 528. The amendment enables the court to establish the non-resident debtor’s title to the property and thereby to establish its jurisdiction of it. If the non-resident debtor holds the legal title, then jurisdiction of the property is acquired by levying the attachment by seizing it, or, if incapable of manual delivery, in the manner already pointed out.

The complaint states no facts constituting any equitable cause of action. The statute provides for an equitable action, but the provision is for those who have equities making the remedy appropriate ; not for those who have none. The law provided the plaintiff an ample remedy, and any action is needless. The plaintiff’s case is within the letter, but without the spirit of the

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statute, and thus without the statute itself. “ The letter killeth, while the spirit lreepeth alive.” Tracy v. Troy & Boston R. R. Co., 38 N. Y., 437 .

The interlocutory judgment reversed, with.costs, and judgment directed for the defendant upon the demurrer, with costs, with the-usual leave to plaintiff to amend the complaint upon payment of costs.

Learned, P. J., and Mayham, J., concur.