p. 692Headnote
Things in action cannot be levied upon and sold upon an execution against property, under the code of procedure.The definitions of words/ enacted in title fifteen of the code, are controlled by such specific provisions, occurring in the same statute, as enlarge or modify the terms defined.
This was an action to recover costs and counsel fees due to the plaintiff, Ransom. Miner defended the suit hy Mr. Dresser, his attorney, and, in its progress, Ransom served on the latter an account, containing the items of his demand, verified by his oath, as required by the code. A motion was now made by Mr. Dresser to compel Ransom to discontinue his suit, or to cease to prosecute it, upon the following state of facts :
Dresser, in May, 1849, recovered a judgment against Ransom, in the justice’s court of the third district of the city of Hew. York, for forty-one dollars. In Hovember, 1860, having docketed the judgment in the county clerk’s office, he issued an execution against Ransom’s property to the sheriff of Hew York. With the execution, he placed in the sheriff’s hands the bill of particulars or account served in this suit. The sheriff levied upon the account, advertised it for sale as personal property, sold Ransom’s right, title, and interest in it to Dresser, as the highest bidder, and executed to him a transfer of the same indorsed on the bill of particulars.
Dresser then notified Ransom of his pinchase, and required him to take no further steps in this suit towards the collection of the plaintiff’s demand, and, on his persisting, made the motion as first stated.
H. Dresser, in support of the motion.
The plaintiff’s demand is a thing i/n, action. By § 463 of the code, things in action are personal property, within the meaning of those words, wherever used in the code. An execution
p. 693against property, is to be satisfied out of the personal property &c. of the debtor. (Code, § 289, subd. 1.) This is, therefore, in conflict with so much of the old law, as required chattels sold by the sheriff, to be present and within view. The supplementary proceedings, (§ 292, &c.,) are for the purpose of reaching property not found by the sheriff.O. P. KwMand, for the plaintiff.
This proceeding is entirely unwarranted by any provision of the code; which, in respect of executions, makes a clear distinction between chattels and things in action. (§§ 293, 294, 297, 299.) The difference is even more marked by the several provisions respecting attachments as a provisional remedy in a suit. (Code, §§ 227, 231, 232, 235 to 237,244.)Things in action have never been liable to levy or sale on execution. ( 12 John. 220 .) -They could only be reached before the code, by a proceeding in equity. (5 J. C. R. 280 ; 20 John. 554 ; enacted into a statute law in 2 R. S. 173,174, § 38, 39. See the reviser’s notes, 3 R. 8 . 669, 2d Ed.)The general terms of section 463 of the code, are of course to be applied subject to the previous specific provisions, by one of which, (§ 291,) the existing law relative to executions, their incidents, sales under them, &c., was applied to executions issued pursuant to the code. Then 2 R. S. 365, § 14 to 20, 22, 23, regulating the levy and sale of goods on execution, will be found utterly at war with the idea that thing's in action can be taken and sold on execution.(With the concurrence of all the justices of the court.) We have considered this novel proceeding, and are confirmed in our first impression, that it is founded on an entirely erroneous construction of the code. The definitions made in title fifteen are necessarily general in their character, and are controlled by specific provisions, limiting or enlarging them, wherever they occur in the same statute. Where there is nothing in the particular provision to show that the words “ personal property,” have a different meaning, section four hundred and sixty-three no doubt extends them to include things
p. 694in action. But it is equally plain that there are particular provisions which preclude those words in the section relative to executions from embracing things in action; and there is nothing in any specific enactment of the code which indicates that the legislature designed to make a change so radical in its nature, and so very difficult to be regulated and guarded against abuse. The substitute for the former creditor’s suit after execution, enacted in the second chapter of title nine, is carefully framed to reach and apply things in action and evidences of debt, and is quite inconsistent with the idea of a levy and sale by the sheriff being equally open to the creditor.
In the remedy by attachment as a process in a suit, the sheriff is to attach all the defendant’s property. He is not permitted to sell any things in action of the debtor. He is to collect and receive them, pending the suit, and pay the proceeds to the plaintiff on the judgment recovered; and also after judgment, he is to proceed with such collection and payment until the judgment is satisfied. ■ Yet the same chapter directs the sheriff to sell on the execution on the judgment recovered, all other real and personal property attached. A conclusive answer to the proceeding attempted, is .found in the requirement of law that personal property offered for sale on execution, must be present and within view of those attending the sale. Such was the common law, and it was enacted in 2 Eev. St. 361, § 23. By section two hundred and ninety-one of the code, the existing provisions of law, relating to executions and sales under them, were applied to the executions prescribed by that chapter, when not in conflict therewith. So far from being in conflict, the requirement of law just stated is in harmony with all the provisions of the chapter of the code relative to “ the execution of the judgment in civil actions.”
Motion denied.