Lupton v. Smith — 10 N.Y. Sup. Ct. 1

Majority

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WILLIAM LUPTON, Appellant, v. FREDERICK W. SMITH and JAMES LUPTON, Respondents.

Headnote

Attachment—action upon choses in action levied upon—by whom must be bi’ought— (Me, § 238.

An action brought to enforce choses in action, upon which an attachment has been levied, must be brought in the name of the sheriff, or of the debtor in the attachment.

Section 288 of the Code, providing that actions may be prosecuted by the plaintiff in the attachment, does not authorize the plaintiff to bring an action in his own name, but only enables him to take the control of such suit when brought by the sheriff, or to bring the same in the name of the sheriff, upon executing to him the bond of indemnity required by the statute.

Van Volhehbwrgh v. Bates (14 Abb. [ST. S.], 314) followed.

Appeal from an order of the Special Term, vacating an attach7 ment.

J 3. dk B. F. Watson, for the appellant.

0. Bainbridge Smith, for the respondents.

The appeal in this case presents a single question ; and that is, whether, under section-238 of the Code of Procedure, the plaintiff in attachment cases may, by giving the bond therein provided,

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prosecute in his own name the action which the sheriff is authorized to bring by sections 232 and 237 of the Code.

This question has received consideration in various cases, and conflicting views have been expressed upon it. In Skinner v. Stuart,^[5] the point was not directly involved, because that was an action brought by the plaintiffs in attachment proceedings to compel the delivery of tangible property to the sheriff; but Cler±e, J., in his opinion discusses the effect of section 238, and expresses the conclusion that debts,credits and effects maybe collected in actions brought in the name of the attaching creditor, on giving the bond. In The Mechcanics' Bank v. Dakin,^[2] the question was not directly involved, but Leonard, J., examined it, and came to a conclusion directly the reverse of that expressed by Mr. Justice Clerke. In Millbank v. The Broadway Bank,^[3] the only question, to which the attention of the court seems to have been called, was, whether, in an action pending in the name of the plaintiff, the bond to the sheriff could be filed nwno pro tunc. The court, Ingraham, J., held that, under sections 173 and 174 of the Code, the power to relieve from the consequences of such an omission existed. What would have been the views of the learned justice on the question now before us, if the present point had been raised, is at most mere matter of inference from the order granted.

The point was only incidentally alluded to in O'Brien v. The Glenville Woolen Co. ( 50 N. Y., 128 ), and 51 New York, 519, in which the Court of Appeals and the Commission of Appeals appear to be in conflict upon the question really involved in those cases. Nowhere do we find the question so directly presented as in Van Valkenburgh v. Bates, in the New York Superior Court at Special Term,' reported in the note to O'Brien v. The Mechanics and Traders' Fire Insurance Company,^[4] in which Van Worst, J., in a clear and able opinion which reviews all the authorities, comes to the following conclusions:

1st. That an action, in aid of an attachment, brought to enforce choses in action, upon which an attachment has been levied, must be brought in the name of the sheriff, or in the name of the debtor in the attachment.

† † 50 Barb., 587 .

‡ ‡ 8 Abb. (N. S.), 333.

§ § 14 Abb. (N. S.), 314. .

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2d. That the provision of the Code,^[5] that actions may be prosecuted by the plaintiff in the attachment, do not authorize the plaintiff to bring them in his own name, but enables him to take the control of such suit when brought by the sheriff, or to bring the same in the sheriff’s name, on executing the bond of indemnity to the sheriff required by said section.

These conclusions have our full concurrence; and the reasons set forth by the learned judge in his opinion, as we think,- lead irresistibly to the result at which he arrived.

We adopt them as our own; and, in consequence, affirm the order appealed from, with ten dollars costs of the appeal, besides disbursements.

Daniels, J., concurred.

Ordered accordingly.

* Section 288.

Footnotes

* 39 Barb., 306 .