O'Brien v. Mechanics & Traders Fire Insurance — 35 N.Y. Super. Ct. 70

Majority

p. 70

JAMES O’BRIEN, Sheriff, etc., Plaintiff and Respondent, v. THE MECHANICS and TRADERS FIRE INSURANCE COMPANY, Defendants and Appellants.

Headnote

In case of a levy of an attachment upon debts due to the defendant in the action, the execution, or levy, must be madé by leaving a copy of the warrant with the debtor, with a notice showing the property levied upon

p. 71

(Code, § 235), and the notice must specify and describe the debt or property of the defendant levied upon. Review of cases upon this point (Orser ®. Grossman, 11 How. Pr. P. 520; Kuhlman «. Orser, 5 Due)', 242 ; Clarke ». Goodrich, 41 AT". Y. 210).

Before Monell, Curtis, and Sedgwick, JJ.

Decided June 29, 1872.

Appeal from a judgment and order.

The action was upon a policy of insurance made Tby the defendants to one E. S. Chandler, Jr., against loss Tby fire to his property at Belleville, Florida. The property was destroyed Tby fire on the 36th of October, 1868.

On the 3d of February, 1869, certain creditors of Chandler commenced an action against him in the Supreme Court of this State, in which action they procured an attachment under the 337th section of the Code, and delivered it to the plaintiff, who, as he claimed, attached under it the claim against the defendants arising under the policy.

The deputy sheriff testified that he served a copy of the attachment upon the defendants, and asked if they had any property belonging to Chandler, and was told that they did not know at that time what property of his was in their possession. He said nothing to the company about a policy of insurance. Ho written or printed notice of any kind was served on the company.

Ho other evidence was given in respect to the levy of the attachment.

After giving evidence of the loss, the plaintiff rested, ' and the defendants moved to dismiss the complaint upon the ground (amongst others) that there was no evidence in the case that any levy was ever made upon the policy of insurance issued by the defendant in this action, or upon any claim for money alleged to be due under said policy ; that there was no evidence in the case that any notice was served upon the defendants by

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the sheriff, specifying that a levy was intended to be made, or was made, under any attachment upon said policy or contract of insurance, or upon any money or debt or demand due or alleged to be due by virtue thereof.

The motion was denied, and the defendants excepted.

The jury found for the plaintiff.

The defendants appealed from the judgment.

Mr. George W. Parsons, for appellants.

Mr. William W. Badger, for respondent.

We are presented at the threshold of this case with the objection that the sheriff has never acquired the right of the insured under the policy of insurance; and, therefore, has no status to maintain the action.

His right to maintain it of course depends upon the sufficiency of the levy under the attachments.

The Code requires, in respect to debts due to the defendant in the attachment, that the execution of the attachment shall be made by leaving a copy of the warrant with the debtor, with a notice showing the property temed on (Code, § 235).

The deputy sheriff testified that he served a copy of the attachment upon .the secretary of the defendant’s company, and at the same time “ asked if they had any property belonging to Mr. E. S. Chandler, and that the secretary replied that he did not know at that time what property of his was in their possession. Nothing was said about a' policy of insurance ; and it does not appear that even the usual notice, which ordinarily is printed upon the back of the attachment, was served on the defendants.

The cases are uniform that to make a sufficient levy the notice must specify the property levied on.

p. 73

In. Orser, Sheriff, v. Grossman, 11 How. Pr. R. 520, the action was hy the sheriff to recover a debt due from the defendant to the defendant in the attachment, and it was shown that a copy of the attachment was served with a notice, that he attached “ all property,” etc. It was held not to he a levy, and the complaint was dismissed.

In Kuhlman v. Orser, 5 Duer, 242 , a similar notice was held to he insufficient; and a like decision was made in Wilson v. Duncan, 11 Abb. 3 . See also Harman v. Remsen, 2 Abb. (N. S.) 272.

The late case of Clarke v. Goodrich, 41 N. Y. R. 210, is directly in point. The levy of the attachment was hy serving a copy and giving a general notice, which was held to he insufficient. The cases of Wilson v. Duncan, and Kuhlman v. Orser are approved, and that of Greenleaf v. Abbott, 19 Abb. 469 , repudiated.

Under the authority of those cases, the levy in the present case was wholly insufficient, and the sheriff did not acquire under it any right to maintain this action.

The judgment must he reversed, and a new trial granted, with costs to the appellants to abide the event.