National Park Bank of New York v. Whitmore — 7 N.Y. St. Rep. 456

Majority

p. 456

The National Park Bank of New York v. James D. Whitmore.

(Supreme Court, General Term, First Department,

Filed March 31, 1887.)

Headnote

1. Motions and orders—Party appearing and being heard on motion BOUND BY.

Any person who is allowed hy the court to appear and be heard on the argument of a motion, is as fully concluded by the disposition which the court makes of it as if he had been named a personal party to it, and received notice of the motion.

2. Attachment—Motion to vacate—Code Crv. Pro., §§ 682 and 683— Scope of how limited.

It is provided by Code Civil Procedure, section 682, that the defendant, or a person who has acquired a lien upon or interest in his property after it was attached, is entitled at any time before the application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action, to apply to vacate or modify the warrant of attachment. Further provision is made by section 683 that such application may be founded only upon the papers upon which the warrant was granted * * * or that it may be founded upon proof by affidavit on the part of defendant * * * in which case the plaintiff may show any matter in avoidance thereof which he might show upon the trial. Meld, that if a defendant has elected to move upon affidavits and upon the

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merits to vacate an attachment, he is not privileged by the section cited to allege, after being defeated on such motion, that the affidavits upon which the attachment was granted, disclosed no grounds for granting the same.

3. Same—Stipulation—Effect of.

Pending an appeal from an order vacating an attachment, a stipulation was entered into between the plaintiffs, the defendant and his assignee, by which it was recited, among other things, that the plaintiff having levied upon the defendant’s goods under the attachment prior to the assignment, and also having in a second action between the same parties obtained a judgment and issued an execution subsequent to the assignment, it was stipulated between the plaintiff and the assignee and by and between the parties to the action that the goods in the hands of the sheriff under the aforesaid levies be released therefrom, etc., and that the assignee deposit from the proceeds thereof a stated sum, if such should be realized from the sale, to take the place of the property held under the attachment, subject to the rights of the plaintiff, until the determination of the appeal. This stipulation was signed by the assignee and his attorneys. Held, that the stipulation applied to the appeal and motion before the general term, and that the rights reserved at the end of the stipulation referred to the rights of the parties in relation to that motion, and, further, that the attachment having been sustained by the appellate courts, the assignee was estopped from claiming any further right to question the validity thereof.

This is an appeal by William Whiting, the assignee of James D. Whitmore & Co., from an order made at special term denying a motion to vacate an attachment granted before the assignment.

The assignor was not a party to the action, but it appears that on the 8th of January, 1886, the defendants obtained an order upon affidavits requiring the plaintiff to show cause why the attachment should not be vacated. Upon the hearing of the application Messrs. Stewart & Boardman appeared for the defendants, and Mr. Stewart of said firm stated in substance that they also appeared for the assignee as well as for the defendants.

After hearing the motion the application to vacate the attachment was granted, and the plaintiff appealed to the general term. Upon the argument at the general term Messrs. Stewart & Boardman presented points which were signed by them as attorneys for the defendants, and for William Whiting, assignee, for the benefit of creditors.

• The general term reversed the decision of the special term and denied the motion to vacate the attachment.

From this decision an appeal was taken to the court of appeals, which appeal was dismissed, for the reason that as it did not appear that the proofs were not sufficient to give the court below jurisdiction to affirm the attachment, the court of last resort had no jurisdiction to interiore therewith. Subsequently to the decision of the court of appeals, without having obtained leave to renew the motion to vacate the attachment, this motion was made at special term to vacate the same on the ground of the insuf

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ficiency of the papers upon which the attachment was granted.

W. W. Macfarland, for app’lt; Charles W. Wetmore, for resp’t.

The assignee was not a party to the action, but it is quite apparent that he was fully heard by counsel upon all the arguments, both at special term, general term and in the court of appeals upon the previous motion to vacate the attachment in this case.

In Jay v. De Groot ( 2 Hun, 205 ), it was held that where the court allows any person to appear and be heard upon the argument of a motion, in the decision of which he is interested, such hearing is as effectual as though such person had received notice of the motion and had been named as a formal party to it, and he is fully concluded by the disposition which the court may make of such motion. In Schrauth v. The Dry Dock Savings Bank ( 8 Daly, 109 ), Chief Justice Daly says: “In Jay v. De Groot ( 2 Hun, 205 ) it was held that any person who is allowed by the court to appear and to be heard on the argument of a motion is as rally concluded by the disposition which the court makes of such motion as if he had been named a personal party to it and received notice of the motion.”

These cases would seem to conclusively establish, that as the assignee was heard through counsel, he is as much bound by the decision at the previous general term of this court, that the attachment should stand, as the parties to the action, and that as to him it is res adjudicata that the plaintiff is entitled to an attachment. " It is, however, said that under section 682 of the Code of Civil Procedure the defendant, or a person who has acquired a lien upon or interest in his property after it was attached, is entitled at any time before the application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action, to apply to vacate or modify the warrant of attachment.

Section 683, however, prescribes that such application “maybe founded only upon the papers upon which the warrant was granted * * * or that it may be founded upon proof by affidavit on the part of the defendant * * * in which case the plaintiff may show any matter in avoidance thereof which he might show upon the trial.”

We do not understand that under these two sections, if a defendant has elected to move upon affidavits and upon the merits to vacate an attachment, he can, after being-defeated upon such motion, turn around and allege that the affidavits on which the attachment was granted disclosed no ground for granting the same. Having made his

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election, he is hound by it, the court having jurisdiction of the person, and the subject matter. This case might, we think, well be disposed of upon these grounds, but it appears from the case that pending the appeal to the general term from the original order vacating the attachment, a stipulation was entered into between the parties by which it was recited, among other things, that the plaintiff having levied upon the defendant’s goods under the attachment prior to the assignment, and also having in a second action between the same parties obtained a judgment and issued an execution subsequent to the assignment, it was stipulated and agreed between the Park Bank and the assignee now maldng this motion, and by and between the parties to the action, that the goods and property now in possession of the sheriff under the aforesaid levies be released therefrom, and the sheriff be discharged from all custody and control thereof, and that upon the sale of the said goods, etc., the assignee deposit from tbe proceeds thereof, in the United States Trust Company, to the credit of the first above entitled action, the sum of $5,500, if such sum be realized upon said sale, which shall take the place of the goods and property now held by the said sheriff under said attachment, and be subject to all the rights that the National Park Bank may now have against the said goods and property, by virtue of said attachment, until the determination of the appeal in said action.

Provision is further made for a deposit to the credit of the second action between the parties. And then it is provided that this stipulation shall not prejudice any of the existing rights of any of the parties thereto. That stipulation is signed by Whiting, assignee, and Stewart & Boardman, attorneys for assignee. We are of the opinion that that stipulation applied to the appeal and motion which was then before the general term of this court, and that the rights which were reserved at the end of the stipulation, referred to the rights of the parties in relation to that motion; and we are further of the opinion that the general term having sustained the attachment, and the court of appeals having dismissed the appeal from the order of the general term, the assignee is now estopped from "claiming that he has any further right to question the validity of the attachment.

For these reasons, we are of the opinion that the order of the court below should be affirmed, with costs.

Van Brunt, Ch. J., and Bartlett, J., concur.