McGinn v. Ross — 33 N.Y. Super. Ct. 346

Majority

p. 346

JOHN McGINN, Plaintiff, v. JOSEPH ROSS, Defendant.

Headnote

Attachment against fbopebty dndeb the Code.

1. Levy on debt due the defendent in the action in which the attachment was issued; what sufficient to constitute so as to bind, the debt and place it in the custody of the sheriff, a. The service on the debtor of a copy of the attachment, together with a notice from the sheriff that he levied on the debt under the attachment, is sufficient.

5. The making and return of an inventory by the sheriff is not necessary.

3. Such a levy is a good defense on part of the debtor to an action brought against him by an asignee of his creditor, claiming under an assignment made subsequent to the levy.

Before Barbour, Ch. J., Monell and Jones, JJ.

Decided June 3, 1871

Exceptions ordered to be heard at general term.

The action was to receive a balance of purchase money of a stock of goods.

In March, 1865, Branigan, the plaintiff’s assignee, sold and delivered to the defendant, for a consideration of four thousand dollars, his stock of goods in the store No. 65 Mott-street in this city. Sixteen hundred dollars of the purchase money was paid at the time, partly in cash, and partly by extinguishing a prior indebtedness of Branigan to the defendant. The balance, the defendant agreed to pay the next day to Branigan’s wife, but did not. Branigan absconded, and remained' away several years. After his return, and in September, 1869, he assigned the claim for the unpaid balance of the purchase money to the plaintiff.

The defendant, amongst other defenses, alleged the

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issuing of two attachments against the property of Branigan, on the several grounds, that he had absconded from the State, and had assigned, disposed of and secreted his property, with intent to defraud his creditors, a copy of which attachments were served by the sheriff upon the defendant in this action, having indorsed thereon a certificate and notice subscribed by the sheriff, that it was a true copy, and that all debts, credits and effects of Branigan were liable thereto and were thereby attached by him, including the alleged claim assigned to the plaintiff.

On the trial before Mr. Justice Fbeedhae and a jury, the defendant offered in evidence the attachment proceedings in two suits by creditors against Branigan, one in the court of common pleas, issued in March, 1805, and the other in the supreme court, issued April, 1865, together with the record of judgment in such suits. Executions upon such judgments were issued. The one upon the common pleas judgment was returned satisfied. No return appeared to have been made to the other.

The offer of this evidence was overruled, and all the proceedings rejected.

The defendant then offered to show that under the second attachment and execution the sheriff temed upon and attached in the hands of Boss, his liability to pay the balance of the purchase money of the property mentioned in the complaint, by serving upon him a copy of the attachment, together with a notice that he levied upon such claim under and by virtue of the attachment and execution issued in the second suit; all of which took place about the date of the- process referred to, and long before the assignment to the plaintiff.

This offer was also overruled and the evidence re-¡ jected.

The defendant excepted to both decisions.

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It appeared in evidence, that under the attachments, the sheriff had taken the stock of goods sold by Branigan to the defendant, and had subsequently sold the same under the execution; upon which sale enough was realized to satisfy the first judgment. The defendant made no resistance to such taking by the sheriff.

The jury, under the direction of the court, rendered a verdict for the plaintiff for the amount claimed.

Judgment was suspended and the exceptions sent to the general term.

Mr. J. H. Whitelegge, for plaintiff.

Mr. Albert Matthews, for defendant

As the rejection of the evidence offered by the defendant appears to have been erroneous, we have not deemed it necessary to examine any of the interesting questions raised by the other exceptions.

It is not understood upon what ground the evidence was excluded; but the plaintiff’s counsel insisted that there had been no sufficient levy upon the claim in shit, so as to vest the right to it in the sheriff. -

It must be assumed, for the purpose of examining the question, that the execution upon the second judgment was unsatisfied; otherwise, the office of the attachment would have been spent, and a new levy would have been necessary under the execution.

These attachments were issued in actions under the Code, and enough appeared to give jurisdiction ; and I think the levy was sufficient to place the debt, due from the defendant to Branigan, in the custody of the law. And as the plaintiff got, by the assignment, such interest only as Branigan had, the evidence offered furnished a defense to the plaintiff’s action.

The levy under the attachment, as it was offered to

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¡be shown, was strictly .in conformity with the statute. The Code provides that all property of the defendant in the attachment shall be liable to levy; and in respect to “debts” due to the defendants, that the attachment shall be executed by the sheriff’s leaving a certified copy with the debtor, with a notice showing the property levied on {Code, §§ 234, 235). That all this was done, the evidence offered would have established.

The effect of such notice was to constitute it a sufficient levy upon the claim in this action, and to vest in the sheriff the right of action upon it (Burkhardt v. Sandford, 7 How. Pr. 329 ), unless, as was claimed by plaintiff’s counsel, the offer of evidence was incomplete, in not embracing an offer, also to show the making and return of an inventory, as required by the statute (2 Rev. Stat. 4, § 8.)

The offer was, I think, sufficient. It was to prove a notice from the sheriff to the debtor that he had levied upon the claim. The lien of the attachment thereupon became complete, and the sheriff became vested with all of Branigan’s interest in the claim.

The omission of the sheriff to make and return an inventory would not, probably, of itself, invalidate the levy, if it was otherwise sufficient, as the provision requiring an inventory is for the benefit of the creditor, and can be enforced only by him.

But, however that may be, it will be seen, that although the sheriff is required (§ 232) to proceed, in all respects, in the manner required of him by law in case of attachments aga’nst absconding debtors, yet the Revised Statutes do not contain any provision constituting a notice to a debtor a levy upon the debt. The provision in the Code is new, and was probably designed, by giving a better notice to the debtor, to protect him against the claim by his creditor.

At and for a long time previous to the assignment to the plaintiff, all the rights of his assignor had passed

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to the sheriff, and he was incapable of transferring anything to the plaintiff until the attachment levy was removed, which had not been done at the time of the trial.

For these reasons, I think the defendant ought to have been permitted to have made good Ms offer and to haveproved his defense.

The exceptions should be sustained, the verdict set aside and a new trial granted, with costs to the defendant to abide the event.

J ones, J., concurred.

Cases cited

Burkhardt v. Sanford & Farnam 7 How. Pr. 329 N.Y. Sup. Ct. p. 349