People v. Mutual Benefit Life Ass'n of America — 67 N.Y. St. Rep. 24

Majority

p. 24

The People, Pl’ff, v. Mutual Benefit Life Association of America, Def't. Thomas C. Smith, App’lt.

(Supreme Court, General Term, First Department,

Filed April 11, 1895.)

Headnote

1. Attachment — Coeporation—Dissolution.

In order to maintain an attachment lien upon the assets of a corporation, no matter where they may be situated, the creditor must show that such lien existed prior to a judgment dissolving such corporation.

2. Same.

The evidence, in this case, was held not sufficient to prove such priority.

Appeal from an order granting the motion of the receiver compelling one Thomas C. Smith to discontinue and withdraw his action against defendant corporation, pending in the state of Connecticut, and all attachments and proceedings ending therein.

Chas. H. Truax, for app’lt; Henry W. Sackett, for receiver.

The defendant in this action is a domestic corporation, and proceedings having been taken for its dissolution,, on the 20th of October, 1894, a judgment dissolving such corporation was entered in said action, which judgment contained an injunction clause restraining all persons whatsoever from commencing any action or proceeding against the defendant, or from taking any further proceedings in any action or proceeding already commenced. It is claimed that, prior to the entry of this judgment, the appellant, Thomas G. Smith, obtained and caused

p. 25

to be levied an attachment upon the property of the defendant in the state of Connecticut; and the only question necessary to be-determined upon this appeal is whether such attachment was levied prior to the entry of the judgment aforesaid or subsequent, thereto.

It is clear that, in order to maintain his lien upon the assets of the corporation, no matter where they may be situated, the appellant, Smith, has been shown by the papers which were used upon the motion in the court below. Upon an examination of these papers, we find no proof whatever as to what, under the laws of Connecticut, constitutes a valid levy. It is true that in one of the affidavits filed upon the part of the appellant, a conclusion is stated, but no facts as to what the law of the state of Connecticut was in that respect. We further find that the sheriff makes two contradictory returns, the later one being equivocal in its language, and evidently false in respect to its date. In the return first appearing in the papers the sheriff certifies under date October 22, 1894, that he then and there levied the attachment. Upon the-part of the appellant, a certificate of the same sheriff is offered in evidence, bearing date the 17th day of October, 1894, in which the sheriff certified that he levied the attachment on the 17th day of October, and left with the garnishee a true and attested copy of the writ, summons, and order of notice, which was manifestly false, as the order of notice was not made until the 19th of October, 1894. Uo reliance could be placed upon certificates of this character, as they are manifestly untrue. The court was correct in disregarding the same, as being utterly unreliable, and affording no basis for a judgment. There would seem, therefore, to be no reason for interfering with the order of the court below so far as it was appealed from, and it should be affirmed, with costs.

All concur.