Majority
p. 47ALEXANDER V. DAVIDSON, as Sheriff, Respondent, v. JAMES SELIGMAN, et al., Appellants. Decided December 1, 1884. Before Sedgwick, ch. J., Van Vorst and Freedman, JJ.
Headnote
Pleading.—Motion to malee definite and certain.—Surplusage averments.A motion to make more definite and certain, averments, which in themselves may be treated as surplusage, is properly denied.
Where, in an action by a sheriff, to recover from defendant moneys alleged in the complaint to have been levied upon, in his hands, by the sheriff, under an attachment as property of the attachment debtor, further allegations in the complaint, that the money was deposited with the defendant in the name of a fraudulent assignee, it not appearing from the complaint that the moneys were equitable assets, may be treated as surplusage.
Appeal from order.
The complaint alleged that the plaintiff as sheriff, under sundry attachments (particularly set forth) levied on a sum of money in the possession of the defendant belonging to and being the property of the attachment debtors. It then averred “ That said levy was made by delivering to and leaving with this defendant, in whose possession said moneys were, certified copies of all of said warrants of attachment issued and delivered to this defendant in the before mentioned actions, and a notice, showing that said sum of $37,601.22 had been levied upon under and by virtue of said warrants of attachment.
c XV. That said money, although the property of said Louis Siedenbach, Leon Schwab and Leon Siedenbach,” (the attachment debtors) was deposited with defendant, as plaintiff, is informed and believes in the name of one William Sulzbacher, a pretended assignee of said Louis Siedenbach, Leon Schwab and Leon Siedenbach, but plaintiff alleges, on information and belief, that said pretended assignment was made with the intent and only with the purpose of defrauding the creditors of said Louis Siedenbach, Leon Schwab and Leon Siedenbach of their just
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and lawful debts and demands against the said Louis Siedenbach, Leon Schwab and Leon Siedenbach, and that said William Sulzbacher, the pretended assignee of said Siedenbach, Schwab and Siedenbach, had full notice thereof.
• “ XVI. That by reason of the fraudulent nature of the said assignment, the same is void and the said money levied upon as aforesaid by this plaintiff in the possession of this defendant, is not the money or property of William Sulzbacher, as assignee, &c., but is in truth and fact the property of the aforesaid Louis Siedenbach, Leon Schwab and Leon Siedenbach.
“XVII. That, by reason of the said levy, and by reason of the facts before set forth, this plaintiff, as sheriff of the city and county of ¡New York, and by virtue of the statute in such case made and provided, became entitled to demand and receive from this defendant the said sum of $37,601.22, the sum levied upon as aforesaid.
Defendants moved for an order that the complaint be made more definite .and certain :
1. By stating who deposited the money referred to in Article XV. of the complaint.
2. By stating what assignment is referred to in said article, and by either annexing a copy thereof to the complaint or by describing the same with reasonable certainty.
3. By stating what is meant by the word “ pretended ” wherever it occurs in said article and substituting therefor the proper word.
4. By alleging the grounds of the information and belief referred to in said article, that “ said assignment was made with the intent and only with the purpose of defrauding the creditors” of the parties named in that behalf; and that the word “pretended” wherever it occurs in Article XV. of the complaint be stricken out as irrelevant or redundant, and for such other and further relief as may be just.
The motion was denied at special term. From the order entered on said denial an appeal was taken to the general term.
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Seligman & Seligman, attorneys, and Eugene Seligman,
of counsel, for appellants, argued :—I. The authorities are overwhelming that the sheriff cannot levy on equitable assets ; that after the attachment debtors have assigned, a levy cannot be made on the funds in the hands of the assignee ; a judgment creditor’s action is necessary to remove the assignment (Anthony v. Wood, Daily Reg., Sep. 5,'84, court of appeals, June 3, 1884; S. C., Alb. L. J., Aug. 2, 1884, 93; Castle v. Lewis, 78 N. Y. 131 ; Thurber v. Blanck, 50 Ib. 80 ; Lawrence v. Bank of Republic, 35 Ib. 320 ; Smith v. Longmire, 24 Hun, 251 ). The plaintiff knows that under these decisions he cannot maintain the action if he sets forth the facts clearly and distinctly on the face of the complaint. His rights can then be decided by a demurrer. He cannot refuse to set out the facts on the face of his complaint, and thereby force the defendants into a trial of fact, with all its harassing and expensive incidents.
II. The facts and circumstances constituting the fraud must be set forth (Heard Civil Pleading, 3, 4 ; Schilling v. Equitable Life Ins. Co., 32 Hun, 235 ; Janson v. Stuart, 2 Smith’s Ins. Co., 78 [7 Am. ed.]; Butler v. Viele, 44 Barb. 166 ; McMurray v. Giffords, 5 How. 14 ; Pomeroy on Remedies to Remedies rights, 2 ed. § 681: Hastings v. Thurston, 18 How. 350 ).
III. The objection is properly taken by motion to make definite, etc. Motion, for indefiniteness, irrelevancy, &c., are the Code substitutes for special demurrers (Marie v. Garrison, 83 N. Y. 14 ).
IV. It is no answer to say the defendants are asking for evidence ; they are seeking for the facts. This objection does not apply when the facts to be stated and the evidence are synonymous (Davenport Co. v. Taussig, 31 Hun, 563 ).
W. Bourke Cockran, attorney,
and of counsel for respondent, argued :—It seems now to be the settled practice, and it has been so held, that, if looking at the complaint the court can see with ordinary certainty the meaning of the different allegations, and the cause of ac
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tion intended to be set up by them, the pleading is not objectionable under section 246 of the Code (Brownell v. Natl. Bk. of Gloversville, 13 Week. Dig. 371; Williamson v. Nat. Elec. Light and Power Co., 48 N. Y. Super. Ct. 541 ; Tilton v. Beecher, 58 N. Y. 177 ; Culver v. Hollerton, 17 Abb. 406 ; Pacific Mail Steamship Co. v. Irwin, 67 Barb. 278 ).
The sole object in alleging the facts contained in the XVth paragraph of the complaint was to identify the sum of money levied upon which the sum defendants certify they are possessed of, but which, instead of standing to the credit of Siedenbach, Schwab & Co., stands to the credit of William Sulzbacher, as assignee of Siedenbach, Schwab & Co. Unless this paragraph was inserted showing to whom it was credited on defendant’s books, it would be impossible for plaintiff to identify on the trial of the action the money which he had previously levied upon.
By the Court.
The complaint alleges that the plaintiff, as sheriff, under smidry attachments, levied upon a sum of money in the hands of the defendant, and proceeds to state the manner of the levy. It also states that the money was the property of the attachment debtor. It does not appear that these moneys are equitable assets, as nothing in the complaint shows that the money was not in coin or bank bills, upon which an actual levy might be made. If the property of the assignor were a chattel, and it had been fraudulently assigned to an assignee, who had left it with the defendant, the sheriff might levy on the chattel, proving the assignment to have been fraudulent as to the attachment creditor. There is nothing in the allegation as to the alleged fraudulent assignments which tend to show that the money levied upon was not in the same condition that it was in when in possession of the assignor. Such allegations may have been competently treated by the judge below, as surplusage, which did not injure the defendants. They, indeed, gave a little more light as to plaintiff’s claimed cause of action, than would have been given by the allega
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tions that the sheriff levied upon property belonging to the debtor, in the hands of the defendants. Under this state of facts, the judge’s decision, in substance, that the defendants were not aggrieved by the matter in the complaint, that the motion aimed at, must be sustained.
Order affirmed, with $10 costs.
Van Vorst and Freedman, JJ., concurred.
Cases cited
- Castle v. Lewis 78 N. Y. 131 p. 49
- Butler v. Viele 44 Barb. 166 p. 49
- Marie v. Garrison 83 N. Y. 14 p. 49
- Williamson v. National Electric Light & Power Co. 48 N. Y. Super. Ct. 541 p. 50