Macdonald v. Kieferdorf — 46 N.Y. St. Rep. 176

Majority

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Nellie Macdonald, Appl’t, v. Frederick F. Kieferdorf, Def’t.

(New York Common Pleas, General Term,

Filed May 2, 1892.)

Headnote

1. Attachment—Waiter oe Objections,

An objection that the moving papers on a motion to vacate an attach'ment made by subsequent attaching creditors do not show that the moving creditors have obtained a valid attachment or sufficiently-point out the particular irregularity complained of, cannot be raised for the first time on appeal.

2. Same—Warrant must recite legal ground.

A warrant of attachment must recite a legal ground therefor. A failure to do so does not constitute a mere irregularity, but is a jurisdictional defect.

8. Same.

A recital that the defendant has departed from the state is nut a compliance with § 641 of the Code, as this is not one of the grounds specified for the granting of an attachment.

Appeal by the plaintiff from an order of this court, entered upon the motion of subsequent attaching creditors, vacating a warrant of attachment herein.

On the first day of February, 1892, Nellie Macdonald, the plaintiff and appellant, procured a warrant of attachment against •the property of Frederick F. Kieferdorf in this action, which was subsequently levied upon the property of the defendant. The warrant recited “ that defendant has departed from the city and state of New York”

' Subsequently Harford B. Kirk and others, composing the firm of H. B. Kirk & Co., the respondents, upon an .affidavit of their attorney alleging the granting of the said warrant of attachment in the above entitled action on February 1, 1892, a copy of which he annexed to the moving papers, and also that in pursuance thereof .the sheriff had made a levy on the stock and goods of the defendant; that on or about February 4, 1892, an action was commenced in this court, in which the respondents were plaintiffs, and the defendant herein defendant; that on February 5, 1892, an attachment was granted in said last mentioned action against the property of the defendant, upon the ground that defendant had departed from this state"with intent to defraud his creditors or to avoid the service of a summons, and duly issued to the sheriff, who by virtue thereof attached the property of the defendant, and .upon the sheriff’s.certificate that he had levied Upon the property of the defendant by virtue of each of the aforesaid attachments, moved to vacate the attachment granted herein, upon the ground that it fails to comply with §§ 23 and 641 of the Code of Civil Procedure.

Upon the argument of the said motion the appellant applied to the court “for leave to amend the said warrant of attachment by inserting therein a full statement of the grounds upon which the said warrant, was granted, as required by § 641 of the Code of Civil Procedure,” which application was denied, and- the said motion was granted, “ upon the ground that the said warrant of attachment fails to comply with § 641 of the Code of Civil

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Procedure,” and from the order entered thereon the plaintiff appeals.

Farther facts are stated in the opinion.

S. F. Kneeland and Henry M. Heymann, for app’lt; Seth Sprague Terry, for resp’ts.

The appellant seeks a reversal "of the order appealed from on the ground, among others, that the moving papers in this case do not show that any valid attachment had been obtained by the moving creditors, and that, therefore, the motion to vacate her attachment could not be entertained Had such an objection been made in the court below it would have been fatal to the right of the moving creditors to make such application, Tim v. Smith, 3 Civ. Pro., 347; aff’d 93 N. Y., 87 ; Williams v. Waddell, 5 Civ. Pro., 191; Bruen v. Gillet, 44 Hun, 298 ; 7 St. Rep., 632 ; Williams v. Kulla, 11 St. Rep., 283 ; Dayton v. The McElwee Mfg. Co., N. Y. Law Journal, Dec. 22, 1891, unless the defect pointed out was permitted to be supplied by amendment. But it would be manifestly unjust to permit such an objection to be raised for the first time on appeal, which the appellant had every opportunity to present in the court below, and which if made might have been met by strict legal proof of the subsequent lien, Tim v. Smith, supra; or if the court would not have permitted an amendment to supply such proof, it must have denied the motion without prejudice to a renewal of the application upon proper proofs and papers; therefore, under these circumstances, the objection is not available on appeal in the first instance.

The appellant also insists that the particular irregularity is not specified in the moving papers, The order to show cause specifies with sufficient distinctness the grounds upon which the moving creditor moved the court to vacate the warrant of attachment herein ; but conceding that the ground was not sufficiently pointed out, the record shows that this objection was not raised in the court below, where a full argument and hearing was had upon the merits, and under the authorities the objection cannot now be entertained for the first time. Livermore v. Bainbridge, 14 Abb., N. S., 227; Miller v. Kent, 10 W. Dig., 361; 59 How., 321 .

The appellant also insists that the omission of any of the requirements specified in § 641 of the Code óf Civil Procedure is a mere irregularity, and that such an omission may be supplied by amendment. It is difficult to see how such a construction can be placed upon these provisions of the Code, which are mandatory, as clearly appears by the following portions thereof applicable to the case under consideration, viz.: “ The warrant must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground of the attachment.” Id. The requisites of the warrant are thus prescribed, and it is manifest from the language of the statute that the legislature intended that unless these provisions are complied with, the warrant should be void.

This view is in accord with that of the codifiers, whose reasons for the additional requirements which now appear in § 641 of the

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Code are stated by Mr. Throop, in his Hotes on the New Code, at page 129, and in which he says that the additions to this section are modelled upon a corresponding section in title 1 (§ 561). In the note to § 561 he says the second and third sentences have been added, and that the former expressly requires the order to state the grounds of arrest, so as to harmonize the provision with similar provisions relating to other provisional remedies, and with § 568, whereby the plaintiff, in opposing a motion to vacate an order of arrest, made upon proof on the part of the defendant, is, in general, confined to the grounds of arrest recited in the order.

While § 561 was amended in 1877 so as to omit this requirement, it can make no difference in the reason given by the codifiers. It was manifestly their intention to require the ground to be recited in tire warrant of attachment, as § 683 expressly provides that, upon a motion to vacate an attachment made upon additional affidavits, new proof on the part of the plaintiff may be made, tending to sustain any ground for the attachment recited in the warrant and no other.

In the case at bar the warrant which was vacated substantially failed to recite the ground of the attachment. It merely recited that “ defendant has departed from the city and state of New York.” This is not one of the grounds specified in the Code for the granting of an attachment. A person has a perfect right to depart from the city and state of New York, without subjecting his property to an attachment. In only two instances can an attachment be granted against the property of a person departing from the state, and those are, when he departs either with-intent to defraud his creditors or to avoid the service of a summons.

We have not, after some research, been able to find any decision touching the precise point involved. We have- been referred to the case of the First National Bank v. Bushwick Chem. Works, 17 Civ. Pro., 229; 25 St. Rep., 830 , which does not touch the point, and it, therefore, cannot be regarded as controlling. In that case an attachment was granted upon the ground that the defendant was about to fraudulently assign, secrete or dispose of its property, while the warrant recited that it had transferred and disposed of its property fraudulently. The court said this was irregular, but as the defect had not been pointed out in the notice of motion as a ground of vacating the attachment, it could not be taken advantage of.

The difference between that case and the one at bar is plain. There the warrant on its face was a good one, as it recited a ground recognized by the Code; but in the case at bar the warrant does not recite any legal ground whatsoever.

The case of Worthington v. Dorsett, 6 St. Rep., 861 ; rev’g Daily Reg., Oct. 5, 1886, which arose in the supreme court, is in harmony with the views above expressed. In that case the name of the judge who granted the attachment was omitted from the copy warrant served. The defendants moved to vacate the attachment, which was denied by the judge at chambers, who held that the Omission referred to was a mere irregularity which it was the duty

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of the court to permit to be remedied, and was not a good ground for vacating the attachment. On appeal, the order denying the motion to vacate the attachment was reversed, and the paper purporting to he an attachment vacated.

The appellant has cited a number of cases which have been carefully examined and considered; but none of them are at variance with the conclusions arrived at and hereinbefore expressed. As a result of such an examination of the cases so cited, and of those cited by the respondent, it is deemed to be not amiss to state that the following deductions have been drawn therefrom, viz,:

1. That where the form of a mandate is prescribed by the Code, it must be substantially followed, otherwise the paper will be jurisdictionally defective and void. Osborn v. McCloskey, 55 How. Pr., 345 ; Worthington v. Dorsett, supra, Place v. Riley, 98 N. Y., 1 ; and see Blossom v. Estes, 84 N. Y., 614 .

2. But where the substantial rights of the defendant have not been violated nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment. Atlantic, etc., Tel. Co. v. Baltimore, etc., R. R. Co., 46 Supr. Ct., 377, 409.

3. Where the paper purporting to be a mandate recites the necessary jurisdictional facts, the same will not be set aside because of erroneous recitals therein, particularly if the defect is not pointed out in the notice of motion as a ground of vacating the attachment. First Rational Bank v. Bushwick, supra.

4. That sheriffs in an action against them to enforce an alleged liability as bail cannot attack the form of the mandate placed in their hands for enforcement. Douglas v. Haberstro, 88 N. Y., 611 .

Inasmuch as the warrant in the case at bar was jurisdictionally defective, the order appealed from should be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.