Courtney v. Eighth Ward Bank

Sheriff Courtney claims to have levied an attachment granted by Justice Vann, of the supreme court, in the action of Edward F. Bice against the Cowles Engineering Company upon the credit of the latter for $1,495.46 in the defendant bank. J udgment was rendered in favor of the defendant, and from that this appeal is taken.

The Code of Civil Procedure (section 649, subd. 3) provides that property incapable of manual delivery may be attached “ by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same,” and section 650 provides'that such person must furnish the sheriff a certificate specifying the property so held. On August 26, 1893, the sheriff left with the defendant ,a copy of such warrant of attachment, with the title of the action and the words, “A copy,” “Warrant of Attachment,” indorsed thereon, and also with the following indorsement thereon, duly signed, viz.:

“ To Eighth Ward Bank: You are hereby notified that the deposit of the Cowles Engineering Co. in your bank and in the indebtedness owing it by your bank is hereby attached by virtue of the annexed warrant. Dated Aug. 26, ’’93. .John Courtney, Sheriff. Wm. J. Cunningham, Deputy.” Plaintiffs’ Exhibit, 1, p. 39.

The defendant failing so furnish a certificate of indebtedness, in accordance with section 650, the sheriff, by letter of September 9th, reminds the defendant that, on August 22, 1893, he served on it this copy of attachment, and requests it to furnish such cer

The referee herein decided that this levy on August 26, 1893, was fatally defective, in that the copy . of the warrant of attachment left with the defendant was not a certified copy. If he was in error in this respect, then the judgment herein must be reversed. The original warrant of attachment is always delivered to the sheriff. Therefore, it is a certification by him that is called for. Crocker, Slier. (3 ed.) p. 642, forms Nos. 140, 141; Hayden v. Nat. Bank, 130 N. Y. 146 ; 41 St. Rep. 263 . Furthermore, the courts have favored a liberal rather than a strict construction of, and a substantial rather than a technically exact compliance' with, the provisions of section 649 of the Code of Civil Procedure. Hayden v. Nat. Bank, 130 N. Y. 146 ; 41 St. Rep. 263 ; Warner v. Fourth Nat. Bank, 115 N. Y. 251 ; 26 St. Rep. 213 ; O'Brien v. Insurance Co., 56 N. Y. 52 ; Adams v. Speelman, 39 Hun, 35 . To certify “is to testify.in writing.” And. Law Diet. The plain object of this provision is to furnish the holder of such property a written declaration of the official custodian of the warrant of attachment under his hand, that the paper left with .him is-a copy. The sheriff did leave with defendant a copy of such warrant, with the indorsement thereon, “A copy;” “Warrant of Attachment,” and did inform defendant in writing, under his hand, and he attached the Cowles Engineering Company’s deposit by virtue of the annexed warrant of attachment, the paper so served. We think the sheriff has substantially complied with this provision.

' Judgment must be reversed, and a new trial ordered, with costs to abide the event.

All concur.