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O'Brien v. Mechanics & Traders Fire Insurance

36 N.Y. Super. Ct. 110 4 Jones & S. 110 Court N.Y. Super. Ct. Decision date 1873-05-31 English

Contents

Majority

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JAMES O’BRIEN, Sheriff, etc., Plaintiff, v. THE MECHANICS AND TRADERS FIRE INSURANCE CO., Defendant.

Headnote

I. Attachment, Execution of, to bind Pbopbbty.—What not Sufficient. s
1. The service of a notice general in its terms and containing no specification of the particular property meant to be levied on is insufficient.
a. This, although the deputy sheriff at the time of serving the attachment and notice told the person on whom he made service and who was connected with the insurance company, that he attached any insurance money due the attachment debtor (without specifying the amount), and was answered by such person that neither he nor the company could tell whether there was any money in their hands belonging to the attachment debtor or not, as the case had not been adjusted—or the matter had not been adjusted; and although the chairman of a committee appointed by four insurance companies (with one of which the person on whom the attachment and notice was served was connected) in which the attachment debtor had insurance to settle and adjust a loss claimed to he covered by the insurance, wrote to the attachment debtor informing him that an attachment had been levied on the companies.
3. Form of notice held insufficient.
3. Owing defect in service.
a. The defect cannot be cured by proof that, after the commencement of an action founded on the levy of an attachment, and after caffiraticn of the time limited by the contract between the attachment debtor and the party against whom the attached claim is alleged to exist,
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for the bringing of an action for the recovery of the claim, a new levy was made accompanied by a prover notice or an amended notice served.
Before Barbour, Ch. J., Freedman and Sedgwick, JJ
Decided May 31, 1873.
II. CLABKE V. GOODBIDSE.
The report of this case in 44 How. 326 , discussed and held that whatever doubt or uncertainty is, or is intended to be, shown by that report upon the decision of the case as reported in 41 N. Y. 210 , yet the report in 41 N. Y. correctly states the decision of the Court of Appeals and the grounds on which it was found.
III. Limitations.—Contbact pbescbibing, shobteb time, than the statute for the bringing of an action for causes of action arising under it. Held valid.
Exceptions ordered to be heard at General Term.
This action was brought by plaintiff, as the representative of certain attaching creditors, upon a policy of insurance for $2,500, dated July 27, 1868, and issued by defendant to E. S. Candler,- Jr., upon property at Bell-ville, Florida. On October 26th, 1868, the property insured, with the exception of a.log house, was entirely destroyed by fire.
On November 24th, 1868, Candler furnished formal proofs of the loss, but was required by the defendant to furnish more particular proofs, which he did in part. The remainder he claimed to be unable to furnish.
February 2d, 1869, Moore, Wakefield & Co., of New York, obtained a warrant of attachment against Candler, which was served by the plaintiff as sheriff on defendant the next day.
Their claim went to judgment and execution March 6th, 1869, for $1,189.97, and their attachment was returned on that day merged in execution.
' Six other creditors of Candler also obtained attachments, which were served on defendant, five of which and two executions still remain in the sheriff’s hands.
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June 18,1869, the sheriff brought this action to collect the insurance under the Code, §§ 232, 237, sub. 4; and the attaching creditors, all but Wm. Bryce & Co., united in prosecuting it.
The answer charges that the loss was fraudulently overstated in the preliminary proofs, and that the action was not brought within six months after the loss, as required by the policy.
The notices served with the warrants of attachment were all in the following form : ,
“The Notice:
I hereby certify the within to be a true copy of the original warrant of attachment, as issued to me in the within mentioned action, and that the attachment, of which the within is a copy, is now in my hands, and that by it I am commanded to attach all the estate, real and personal, including money and bank-notes of the defendant, E. S. Candler, Jr., within named, within my county (except articles exempt from execution), and to take into my custody all books of account, vouchers and papers relating to the property, debts, credits, and effects of said defendant, together with all evidences of title to real estate; and that all such property, debts and effects, and all rights and shares of stock, with all interests and profits thereon, and all dividends thereon, or therefrom of the said defendant now in your possession or under your control, are, and those which may come into your possession or under your control, will be liable to said warrant of attachment, and are hereby attached by me, and you are hereby required to deliver all such moneys, bank-notes, books, vouchers, papers, debts, credits, effects, evidences of title to real estate, shares of stock interests, profits and dividends thereon, and all property capable of manual delivery, into my custody without delay.
And I hereby require you to furnish me with a cer
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tificate, as required in that "behalf "by the Code of Procedure, of any rights, shares, debts, or other property of said defendant, incapable of manual delivery. And in default you will be liable to the examination and attachment in such cases provided by law.
Dated New York, April 3d, 1869.
Yours, etc.,
JAMES O’BRIEN,
Sheriff of the City and County of New York.
William Baird,
Deputy Sheriff.”
The deputy sheriff who served the warrant testified that at the time of the service he told the person on whom the service was made that he attached any insurance money (not mentioning the amount) in the hands of the insurance company with which such person was connected, belonging to the attachment debtor or due to him. To which said person replied that neither he nor the company could tell whether they had any moneys in their hands belonging to the attachment debtor or not, as the case had not been adjusted—as the matter had not been adjusted. Italso appeared in the evidence that the chairman of a committee appointed by four insurance companies (with one of which the person on whom the attachment and notices were served was connected), in which the attachment debtor had insurances to settle and adjust a loss claimed to be covered by the insurance, wrote to the attachment debtor informing him that an attachment had been levied on the companies.
On the trial it appeared that the action was commenced prior to February 27th, 1869.
The policy of insurance read in evidence contained a clause providing that the amount of loss or damage of or to the insured property should be payable sixty days after due notice of such loss or damage, and proofs
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thereof shall have been made by the insured and received at the company’s office in accordance with the conditions annexed to the policy, and the terms and provisions of the policy, unless the property be replaced, or the company shall have given notice of their intention to rebuild or repair the damaged premises. Among the conditions annexed to the policy was the following one:
“It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within six months next after the loss shall occur ; and should any suit or action be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.” On the trial plaintiff offered to show that he, on the 10th of December, 1872, served on defendant another copy attachment and notice in the form above given with these additional words added to the notice : “ And particularly $2,437.50 insurance money owing to Mm from your 'company for insurance in 1868.”
The offer was objected to, the evidence excluded, and plaintiff excepted.
Plaintiff also offered to show that on the 12th day of December, 1872, he served on the secretary of the defendant a notice as follows :
“N. Y. Superior Court.
James O’Brien, Sheriff, etc., v. The Mechanics’ & Traders’ Fire Insurance Company, Defendants.
Amended Notice.
To the above-named defendant:
You are hereby notified, that the printed and written
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notices heretofore served on you, in February, March, April, May, and June, 1869, by James O’Brien, as Sheriff of the City and County of New York, and left with you at those times with the certified copies of seven warrants of attachment against the debts and property of E. S. Candler, Jr., which were then served upon and left with you, in fact referred to, and were intended to specify the debt and property of E. S. Candler, Jr., hereinafter described, and the said notices are hereby amended, and made more specific by adding to each of them the following allegations:
“That said warrants of attachment were levied and are hereby levied on certain money, to wit, a debt of $2,437.50, then and still owing from you to said E. S. Candler, Jr., for insurance losses on his store and goods at Belleville, Florida, which were burned in October, 1868, he then having a policy of insurance of $2,500 thereon, issued to him in 1868 by you, amounting together to $10,000, and that I hereby demand the payment of the said debt to me forthwith by‘virtue of the said seven attachments.”
Also take notice that you are hereby required to produce this paper on the trial of these actions, or that proof of its contents will be given.
Also that this notice is given, and this amendment made, because your counsel, Greo. W. Parsons, Esq., has taken much time, and caused great delay of justice, and much expense, in asserting and maintaining a claim that said former notices were defective in not sufficiently informing the companies, and that they were, in fact, not specifically or sufficiently informed of what was levied on, or intended to be levied on, by the sheriff in these actions.
December 11, 1872.
William Baird, Deputy.”
JAMES O’BRIEN, Late Sheriff.
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The offer was objected to, the evidence excluded, and. plaintiff excepted.
Defendants’ counsel moved to dismiss the complaint-on the following grounds :
1. That the attachments had never been levied upon the property in question.
2. That in the twelfth condition of insurance it was-expressly agreed that no suits or actions against the company, for the recovery of any claim by virtue of the policy, should be sustainable .in any court of law or chancery, unless said suit should be commenced within six months after the loss occurred.
3. That no right of action ever accrued to anybody, inasmuch as 'the proofs of loss were never served in compliance with the ninth condition of the policy.
The justice dismissed the complaint on the ground that the sheriff’s proceedings did not constitute a levy, and that the unadjusted claim of Candler against the company had not been attached, the notice served not. sufficiently “ showing the property levied on” (Code,. § 235).
Plaintiff’s exceptions were ordered to be heard in the first instance at the General Term, with a stay in the action until decision thereon.
William, H. Badger and Livingston K. Miller, of counsel for plaintiff, urged :
1. Defects in the notice, if any, are immaterial in this case, as proof is undisputed that it fully accomplished its object.
Ratio legis eessat, lex ipse cessat.
The admission in the answer, the statement of Tompkins to Sweeney, and the act of defendants’ committee in writing to Candler, that attachments had been levied, show conclusively that the object of the notice was fully accomplished (Tate v. Jordan, 3 Abb. pr.. 394).
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2. The defects, if any, are amendable, and there is no just reason why the new levy offered in evidence, ■or the amended notice offered should not have been admitted.
It is common practice now, and ought to be, to plead or prove, in furtherance of justice, any facts occurring after suit brought, and even after judgment.
There is no limit of time within which a sheriff must levy an attachment. His powers continue even after his term of office expires, and as long as he holds the process (2 R. S. 439, § 89, 91; Millbank v. Broadway Bank, 3 Abb., N. S. 223 ; Rinchey v. Stryker, 26 How. Pr., 83 ; McKay v. Harrower, 27 Barb., 463 ; Abbott v. Metropolitan Fire Ins. Co. ; Same v. The Star Ins. Co.; Same v. The Globe Ins. Co. ; Civil Law Journal for February, 1873, p. 51).
In these cases the General Term in Brooklyn, by Justices Barnard, Hogeboom, and Tappen, approved an amendment allowed by Pratt, J., which alleged a reassignment of the policy to plaintiff subsequent to the commencement of the actions for its collection, it appearing that plaintiff had assigned the policy before suit, so that at its commencement he had no cause of action whatever. This was after judgment absolute had been ordered for defendants on demurrer to the complaint in one of the cases. The court also allowed .a farther affidavit to be filed nunc pro tunc, after argument at the General Term of an appeal from Judge Pratt’s order, which showed an additional reason for allowing the amendment to be that any new action was barred by a limitation clause of one year in the policies. That is precisely our case here, only the limitation is six months.
3. The notice was sufficient as it was fully understood and accepted, and an action evidently had to be brought to adjust the loss. The sheriff was therefore right in bringing it at once, before the six months’ limitation.
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clause in the policy, then nearly run out, should "bar "both him and Candler, whose rights he was assuming to represent.
In Kelly v. Roberts ( 40 N. Y. 432 ), the second notice served, merely adding the amount as “a sum of $1,200,” was no more specific than this, and was held sufficient (p. 442). The amount in that case was also liquidated, so that it could be specified. (Opinion of Judges Daniels and James in Clarke v. Goodrich, 44 How. Pr. 234 ; Greenleaf v. Mumford, 19 Abb. 478 Drake v. Goodridge, 54 Barb. 78 , overruled on other grounds only; and cases cited under point seven).
4. The cases cited by defendants as authority do not touch the question as now presented.
Clark v. Goodridge ( 41 N. Y., 210 ) has been very imperfectly reported, and has been, in consequence, strangely misunderstood and misapplied.
A corrected report of it will be found in 44 How. Pr., 226 , with opinions of four judges not before published, which show that nothing whatever was decided by the court as to the sufficiency of the notice.
There is merely a dictum of Ward Hunt, J., against the notice, and an opinion by Judges Daniels and James in its favor, while Judges Lott and Grover hold that question not to be before the court at all, in which they are plainly correct.
The only thing actually decided was that the sheriffs return was conclusive, and terminated his powers in the matter. There was no process whatever in the sheriff’s hands at the time the receiver acquired title, the attachment and execution into which it had merged having both been previously returned (41 N. Y., p. 211; 44 How. Pr., 226 ).
The other cases cited by defendants are equally foreign from the point.
In Orser v. Grossman ( 11 How. Pr. 520 ) no attachment (p. 522) at all was served on defendants. It was.
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left with a man in defendants’ store, with no evidence that it ever came to defendants’ knowledge. This defective service disposed of the case, and no decision whatever was made as to the sufficiency of the notice, though it was alluded to by the court as doubt.
Kuhlman v. Orser ( 5 Duer, 249 ) was a suit against the sheriff for conversion, in which the question decided was that the defendant in the attachment suit had never owned the goods in question. The notice served does not appear, and nothing was decided as to its sufficiency.
Wilson v. Duncan ( 8 Abb. 354 , 11 Abb. 3 ) was a motion under § 122, for an interpleader to substitute rival claimants in place of defendants, the amount being liquidated. The sheriff was not a party to the suit or motion. The sufficiency of the levy was not even alluded to at Special Term by Hoffman, J., in granting the motion, though he wrote a careful opinion. The General Term, by Robertson, J., allude incidentally to the general notice, but place their decision entirely on other grounds and defects in the motion papers ( 11 Abb. 7 , bottom of page).
Harmon v. Remsen (2 Abb. A. 8, 272) was an action for an interpleader, brought against the sheriff and others, the amount involved being liquidated and paid into court. The notice served was less specific than in the present case, and the sheriff had taken no action to enforce his levy in any way, which fact is stated as the reason for the decision.
The former General Term decision in this case merely held that as no notice then appeared in the case, a motion to dismiss was properly made, no question of sufficiency of notice was before the court or passed upon at all.
5. The six months’ limitation clause must be construed in connection with the sixty days’ clause, and the action is, therefore, in time. The fire was
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October 36, 1868; suit begun June 18, 1869 (The Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 45 ; affirming same case, 10 Bosw., 539 ; Ames v. N. Y. Union Ins. Co., 14 N. Y. 365 ).
Walter M. Underhill, attorney, and George W. Parsons, of counsel for defendant, urged :
First—1. It is confidently submitted that a specific levy, according to section 335 of the Code, upon property incapable of manual delivery, cannot be made even by serving with the copy of the attachment a specific notice showing the property levied upon, without making or filing any inventory as required by section 333 and the statute referred to; and it is no answer to this to say that the party served did not or would not give any certificate or information sufficient to enable the sheriff to perform this duty. The case of Kelly v. Roberts (40 If. Y. p. 433), shows how the sheriff may proceed in such cases to perfect the levy, viz., by bringing up the creditor or person holding the intangible property before the judge, and examining him, under oath, pursuant to section 336 of the Code. Certainly it is not in the contemplation of the law to allow a sheriff to sue any one he may choose to, without complying with these requirements of the law, and without any express authority from the court of justice which issued the warrant. Section 333 expressly provides that the sheriff shall proceed, ‘ ‘ subject to the direction of the court or judge.” And the court or judge could not acquire jurisdiction to give any directions; nor can the sheriff proceed to collect any debts or credits, until they are shown in the manner prescribed by law to have an existence, and just what they are, and that they have been sufficiently levied upon by the attachment.
3. But the notice served with the attachment was not specific in stating the property intended to be levied on.
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3. It follows that no sufficient levy was ever made; plaintiff has no standing in court, and it is not shown that a cause of action existed in his favor, as sheriff, which he could prosecute under the Code (Kuhlman v. Orser, 5 Duer. 242 ; Superior Court, General Term— Wilson v. Duncan, 11 Abbt. 3 ; Orser v. Grossman, 4 E. D. Smith, 443 ; Harman v. Remsen, 2 Abbt. [N. S.] 272; Wood v. Orser, 25 N. Y. R. p. 353; Clarke v. Goodridge, 41 N. Y. R. 210).
Second.—It does not obviate the difficulty stated in the preceding point, to say that the deputy-sheriff made some loose oral statements in respect to the property intended to be reached, at the time he served the process, nor to show that some agent of the defendant talked or wrote to the defendant in the attachment, in a manner to indicate that the agent knew what property it was designed to reach by the attachment.
1. The statute requires that the sheriff should serve a “notice showing the property levied on;35 section 408 of the Code provides that all notices shall be in writing ; and this was requisite before as well as since the Code (Matter of Cooper, 15 Johns. 533 ; Gilbert v. Columbian Turnpike Co., 3 Johns. Cas. 109 ; People v. Eldridge, 7 How. Pr. 108 ; Kerr v. McGuire, 28 N. Y. 453 ).
2. The statements, both oral and written, made by Douglass, after the alleged service, were inadmissible.
(a.) Douglass had no connection whatever with defendant, except as chairman of a committee appointed by all the companies to inquire into, adjust, and settle the loss with Candler, and was not in any sense an agent to make declarations or admissions in regard to the service of the attachments. This proposition is too plain to need citations of cases to illustrate. Again :
(5.) There are numerous adjudications to the effect that neither the officers nor other agents of a corporation can, by their declarations or admissions, create any
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liability upon the company, after the question of liability has been fixed by acts or events as between the principals, or under the contract between the parties (Stephenson v. The N. Y. & H. R. R. Co., 2 Duer, 341 ; The Trustees of First Baptist Church v. The Brooklyn Fire Ins. Co., 28 N. Y. R. p. 153 ; Green v. The N. Y. Central Railroad Co., 12 Abbt. R. [N. S.] 473; Thallheimer v. Brinckerhoff, 4 Wend. 394 ; Luby v. Hudson River R. R. Co., 17 N. Y. 131 ; Baxter v. Chelsea Insurance Co., 1 Allen [Mass.] 294 ; Thompsonv. Stewart, 3 Conn. at p. 183 ; Mallory v. Perkins, 9 Bosw. 572 ; Dawes v. North River Ins. Co., 7 Cowen, 462 ; Vail v. Judson, 4 E. D. Smith, 165; Barker v. Binninger, 4 Kern. 271).
3. In respect to the suggestion as to any waiver, I add that, to be bound by a waiver, a party must know of the existing defect, and proceed to act without taking the objection (Darnly v. London, etc., R. R. Co., 15 W. R. 817 ; S. C. 36 L. J. Chanc. 404 ; 1 Parsons on Con. p. 427, and cases cited in notes.
Third.—By the twelfth condition of insurance it was “ expressly agreed that no suit or action against this company,for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within six months next after the loss shall occur,’’ etc. The fire and loss occurred on the 26th of October, 1868.
' It was admitted on the trial that this action was commenced on the 18th day of June, 1869.
1. In the recent case of Gilbert v. The Phoenix Ins. Co. (36 N. Y. R. 372), the familiar principle was reaffirmed, that where parties have made an agreement, the court has no right to interpose another agreement for them (vide also Riddlesberger v. Hartford Ins. Co., 7 Wallace, 386 ; 30 N. Y. R. at p. 163).
2. It has also been repeatedly held that such a limita
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tion was binding upon the parties to the contract and their privies (vide Ripley v. The Ætna Ins. Co., 30 N. Y. 136 , 163 ; Roach v. New York & Erie Ins. Co., 30 N. Y. 546 ).
3. The case of The Mayor, etc., v. Hamilton Ins. Co. (39 N. Y. R. 45), in which the provision of the policy was, that the action must be commenced “within the “term of six months after any loss or damage shall accrue” where the court very properly held that this provision, being construed in connection with all the other provisions, must be held to mean that the action must be commenced within six months from the time plaintiff had a right to sue, does not apply to the present case.
4. We insist that the case referred to is not authority for a policy like the one in this case ; that, aside from authority, the plain definition of the word “occur” in our policy, distinguished this case from the one cited; and we refer to the case of Roach v. The N. Y., etc., Ins. Co. ( 30 N. Y. 546 ), to show how the Court of Appeals has interpreted it (vide, also, Riddlesberger v. Hartford Ins. Co., 7 Wallace [U. S .], 386).
Fourth.—The attempt to prove the service of notices after issue and just before the trial, was properly excluded.

The learned judge who presided at the trial dismissed the complaint for the reason that the claim of Candler against the defend • ant upon the policy in question had not been attached by the sheriff, and that consequently the plaintiff had no such title to the property as is necessary for the maintenance of the action.

The manner in which'attachments under the Code are to be executed, so as to bind property of which manual delivery cannot be made, is prescribed by the 235th section of the Code. They are to be executed by leaving a

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certified copy of the warrant of attachment with the person or corporation holding such property, “with a notice showing the property levied upon.” Section 236 furnishes the sheriff with the means of obtaining a dis-' closure of all the particulars necessary to enable him to describe the property intended to be levied upon with due particularity. He may apply to the person holding the property for a certificate designating the amount and description of the property so held. In case the certificate be refused, it may be compelled.

In Kuhlman v. Orser, 5 Duer, 242 , this court expressly held, as one of the grounds upon which judgment absolute was ordered for the plaintiff upon the verdict, that the requirement of the said 235th section can only be satisfied by a notice which so particularly describes the property, that the holder is thereby enabled to identify it, and that a notice, general in its terms and containing no specification of the particular property meant to be levied on, is insufficient and void.'

This decision has since been followed by this court in Wilson v. Duncan ( 11 Abb. 3 ), and expressly approved by the Court of Appeals in Clarke v. Goodridge ( 41 N. Y. 210 ). It is true, that in another report of the last-named case, contained in 44 Row. 226, an attempt has been made to show that the opinion of Chief Justice Hunt, upon the point now under consideration, was not concurred in by a majority of the court, and was not necessary to the decision of that case. But the printed cases in Clarke v. Goodridge and Drake v. Goodridge, which were handed up by defendants’ counsel, and a critical examination of the opinions published in 44 Row. in the light which the printed records throw upon them, decidedly show that although there were two motions in these cases, which may have been argued together in the .Court of Appeals, they had, nevertheless, been disposed of originally by two different

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judges of the Supreme Court, and that they involved essentially different questions, which were ultimately disposed of hy the Court of Appeals as follows :

In the one case the order was reversed for the reason stated by Chief Justice Hunt, and concurred in by all the judges except Daniels and James, that the notice served by the sheriff upon the National Bank of the Bepublic did not specify sufficiently the property intended to be levied on, and did not refer to the interest of the debtor in such property with reasonable certainty.

In the other case the order was reversed for the reason stated in the opinions of Grover and Scott, JJ., namely, that it did not appear that the sheriff had at any time made an attempt in any way to serve the attachment, while it was in his hands, upon the debt due from Verhoven & Co. to Goodridge ; that consequently the attachment never had been a lien on the fund, and that upon its return the sheriff’s power under it had ceased. Mr. Justice Grover was therefore entirely correct in saying ( 44 How. 229 ) that the sufficiency of the notice served by the sheriff upon the National Bank of the Bepublic, in the case first above referred to, had nothing to do with the second case.

The doctrine first laid down in Kuhlman v. Orser (supra) represents, therefore, not only the settled law of this court, but the law of this State as settled by the Court of Appeals, and from this it follows- that the notices served in the case at bar which purported to cover generally all the property, real and personal, money, bank-notes, books of account, and vouchers and papers relating thereto and the debts, credits, and effects of Candler in the possession of or under the control of the defendant, and which were not followed up by the procurement of a certificate and the returning of an inventory, were wholly insufficient to work a levy upon Candler’s claim under the policy in question.

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This being so, the sheriff is not in a position to maintain this action ; and the defect could not be cured by proof that subsequent to its commencement, but long after the limitation of the six months prescribed by the policy for its commencement, had attached, he made a new levy accompanied by a proper notice. Such a contract of limitation is valid, and will be enforced by the courts (Roach v. The N. Y. & Erie Ins. Co., 30 N. Y. 546 , and The Mayor, etc., of N. Y. v. The Hamilton Fire Ins. Co., 39 N. Y. 45 ). Nor could the defect be obviated by mere conversations between the deputy sheriff and defendants’ officers. The remedy given by the 235th section is not merely cumulative, but is the only remedy known to the law in the cases there mentioned, and must be strictly pursued.

Plaintiff’s exceptions must be overruled and judgment absolute, dismissing the complaint, ordered for the defendant, with costs.

Barbour, C. J., and Sedgwick, J., concurred.

Cases cited