Page images
PDF
EPUB

or as soon thereafter as counsel can be heard, why they should not give the sheriff of the [city and] county of access to safe No. of said company, and possession of the contents thereof, under the warrant of attachment herein, or why they should not deliver to said sheriff whatever property of the defendant, L. G., said company may have in its custody or possession, or deliver to said sheriff a certificate of such property, or why said sheriff should not break open said safe to obtain access to and possession of its contents, or why such other or further relief, as to the court may seem proper, should not be granted to said plaintiff and said sheriff in the premises.

And in the meantime, and until the determination by the court of the motion raised by foregoing order to show cause;

ORDERED, that the

company, of

its officers and agents, be and they hereby are enjoined and restrained from permitting any person, except the sheriff of the [city and] county of , or his deputy acting under the attachment heretofore issued in this action, to have access to or obtain possession of any portion of the contents of safe or lock box No. company, or any safe of said company leased to or used by the defendant herein, L. G.

, of said

[Signature of judge.]

FORM No. 848.

[ocr errors]

Order to open safe deposit box.

[Title and recitals as usual.] ORDERED, that the motion to vacate the attachment herein be and the same is hereby denied; and the sheriff of the county of is hereby directed to open the tin box now in his custody and possession, not permitting counsel or agents of either party to this action to be present, and safely keep all property and evidence of debt liable to attachment therein found, and deliver to the defendant, or his authorized agent, all private papers, mem-' oranda, invoices, and correspondence, if any be found therein, and all articles not liable to attachment.

And the order made herein on the directing the

company of

day of

19,

to show cause why the of said com

sheriff should not have access to safe No. pany, and possession of the contents thereof, under the said attachment issued in this action, or why said company should not deliver to the sheriff whatever property of the defendant, L. G., said company may have in its possession or custody, or why said company should not deliver to the sheriff a certificate of such

property, or why said sheriff should not break open said safe to obtain access to and possession of its contents, or why such other relief as to the court might seem proper should not be granted to the plaintiffs and said sheriff, having come on duly to be argued, it is, after reading and filing the additional papers used on the last mentioned motion, namely, said order to show cause and the affidavits of J. M., and E. H. S., respectively, on which the same was obtained, and the further affidavit of J. M., dated the day

of

[ocr errors]

19 used on behalf of plaintiffs, and the affidavit of W. G. L., president of the

company,

FURTHER ORDERED, that the sheriff of the [city and] county of be and he hereby is directed to open safe No.

company, at No.

in

the vault of said street, in by such means as he finds necessary, with least injury thereto possible, not permitting counsel or agents of either party to this action to be present; and that he take from said safe and safely keep all property and evidence of debt liable to attachment herein found therein, and deliver to the defendant, or his authorized agent, all private papers, memoranda, invoices, and correspondence, articles and papers not liable to attachment, if any there be, found in said safe.

FORM No. 849.

[Signature of judge.]

Notice of attachment to bind real property.49

[Title of court and action, stating names of all the parties.]

NOTICE IS HEREBY GIVEN, that in an action which has been commenced in this court, by the above-named plaintiff, against the above-named defendant, upon [here briefly indicate nature of cause of action,50 for instance] a promissory note made by the defendant, a warrant of attachment against the property of the defendant Y. Z. was duly issued on the day of

49 Required by N. Y. Code Civ. Pro., $649, subd. 1, § 1217; Van Camp v. Searle, 79 Hun, 134, 29 N. Y. Supp. 757, aff'd, 147 N. Y. 150. The clerk should note the hour and minute of filing, as priority may depend on that. Compare Id., §§ 649 and 697, and Vol. I. p. 53; Burkhart v. McClellan, 15 Abb. Pr. 243, note; Rodgers v. Bonner, 45 N. Y. 379, aff'g 55 Barb. 9; Wilson v. Kelly, 31 Hun, 75; s. P., Lamont v. Cheshire, 65 N. Y. 30.

The sheriff need not take possession

19

of the real estate attached. Cases cited, supra.

Sale under a judgment in the action relates back to the time of the attachment. Van Camp v. Searle, 79 Hun, 134, 29 N. Y. Supp. 757, aff'd, 147 N. Y. 150.

See, as to validity of an attachment issued from a U. S. court, although no notice was filed in the county, Beardslee v. Ingraham, 183 N. Y. 411.

50 See Briggs v. Hodgdon, 78 Maine, 514, 7 Atl. Rep. 387.

county for execution. The

day of

and delivered to the sheriff of amount of the plaintiff's claim, as stated in the said warrant, is dollars [with interest from the 19 ], and expenses and costs. The real property levied upon, under said warrant of attachment, is [the defendant's interest in premises1] described as follows: All that certain lot [giving particular description, as in a conveyance].52

[Date.]

[Signature and office address of] Attorney for plaintiff. [File53 in office of clerk of county where property is situated, with direction to clerk as to indexing. See Form 523, Vol. I, p. 895.]

III. PROPERTY, ETC., IN HANDS OF THIRD PERSON.

FORM No. 850.

Certificate by sheriff to copy of attachment; and notice to third person of levy upon property in his hands - General Form.54

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

51 Any assignable interest is bound. N. Y. Code Civ. Pro., § 645. Includes vendee's interest in a contract to purchase, under which he is in possession. Higgins v. McConnell, 130 N. Y. 482. Also a widow's dower before its admeasurement. Latourette r. Latourette, 52 App. Div. 192, 65 N. Y. Supp. 8. See also Sheridan v. House, 4 Abb. Ct. App. Dec. 218, and cases cited in note.

52 The notice should include only the property actually to be affected by the judgment, and should include only the property attached. Fitzgerald v. Blake, 42 Barb. 513.

If it includes property not attached it is inoperative as to such property. Id.

A notice which merely described the property attached as all the real property of the defendant B., or in which she may have an interest, situate in Chenango county," held, to be a nullity. Jaffray v. Brown, 17 Hun, 575. As to effect of omitting description, see also Warren v. Dick, 17 Nebr. 241, 22 N. W. Rep. 462.

53 See Davis Sewing Mach. Co. v. Whitney (Mich., 1886), 28 N. W. Rep. 674. It is a part of the sher

iff's duty to file the notice, and if he omits so to do, after promising, he is liable. Lewis v. Douglass, 53 Hun, 587, 6 N. Y. Supp. 888.

66

54 The statute requires delivery of a certified copy of the warrant, and is not satisfied by delivery of a copy of the warrant, merely indorsed a copy," without signature. Courtney v. Eighth Ward Bank, 154 N. Y. 688, 5 Anno. Cas. 155; People v. St. Nicholas Bank, 44 App. Div. 313, 60 N. Y. Supp. 719: Weil v. Gallun, 75 App. Div. 439, 78 N. Y. Supp. 300.

The sheriff's neglect to serve copies on the person in charge of property is an irregularity not affecting the jurisdiction; and leave to serve nunc pro tunc may be given to meet a motion to vacate the attachment on that ground. Lawrence, J., Davis v. Brooks, not reported; s. P., Adams v. Speelman, 39 Hun, 35.

As to the effect of leaving a copy of the warrant, in case of property, etc., in the hands of a third person, without the notice, see Miles v. Brown, 38 N. Y. Super. Ct. 400.

In support of the general principle of attaching goods or credits in the hands of third persons, by a simple

-

[ocr errors]

my hands, and that by it I am commanded to attach all55 the property, real and personal, including money and bank notes [and things in action] of the within named defendant Y. Z. [or, if there are several, say, of the defendants W. X. and Y. Z., as co-partners doing business under the firm name of X. and Z., or otherwise, and of either or, any of them], within my county (except articles exempt from execution), which he has [or, which they or either or any of them have], or which he [or, they either or any of them] may have at any time before final judgment in the action, and to take into my custody all books of account, vouchers, and other papers relating to such personal property, debts,57 credits and effects, remittances and advances of said defendant [or, said defendants, or either or any of them], together with all evidences of title of said defendant [or, of said defendants, or either or any of them], to such real property; and

service of a notice, see Miller v. United States, 11 Wall. 268, 298.

55 See note 30 to Form No. 835. 56 This language (taken from 2 R. S., 3, § 8) was held not to include correspondence. Hergman v. Dettlebach, 11 How. Pr. 46.

57 As to what debts may or may not be attached, see the following cases:

Excelsior Co. v. Cosmopolitan Co., 80 Hun, 592, 30 N. Y. Supp. 557, rev'd on another point, 154 N. Y. 772 (a debt depending on a contingency which may never happen cannot be attached).

Wehle v. Conner, 83 N. Y. 231 (moneys of defendant collected on execution against third person in sheriff's hands; but no formal notice on levy is necessary in such a case). Compare 22 Am. L. Reg. (N. S.) 665, 671.

Kelly v. Roberts, 40 N. Y. 432. A debt due defendant may be attached notwithstanding a promise made to defendant by the debtor to pay it to a third person, there being no trust or agency for the third person, and the latter having no notice of the promise; s. P., Kelly r. Babcock, 49 N. Y. 318. Compare Freund v. Importers & Tr. Nat. Bank, 12 Hun, 537, 540.

But otherwise where a trust has been created. Rogers Loco. Works r. Kelly, 19 Hun, 399, aff'd, 88 N. Y. 234; 8. P., Hurd v. Farmers' Loan & Trust Co., 63 How. Pr. 314.

But if the money is liable to be

56

recalled at any time by the depositor (defendant) it is subject to attachment. Lynch v. Crary, 34 N. Y. Super. Ct. 461, rev'd on another point, 52 N. Y. 181.

The certification of a check drawn upon a bank does not exempt the deposit from attachment while the check is outstanding in the drawer's hands, unless shown to have come into the hands of a bona fide holder. Gibson v. Nat. Park Bank, 98 N. Y. 87.

As to what "property, debts, credits and effects" may be reached, see the following cases:

Simpson v. Jersey City Contr. Co., 165 N. Y. 193, 31 Civ. Pro. Rep. 286 (interest of defendant in stock of another foreign corporation pledged within the State).

Westervelt v. Phelps, 171 N. Y. 212 (funds in the hands of indorsers of bill of lading, after repayment of advances).

Amberg v. Manhattan. L. Ins. Co., 171 N. Y. 314 (a matured policy upon husband's life payable to wife, may be attached for wife's debt).

Johnston v. Stimmel. 89 N. Y. 117 (proceeds of sale of mortgaged premises), compared with Trotter . Lehigh Zinc & Iron Co. (N. J., 1886), 2 Cent. Rep. 737 (money ordered to be paid into court).

Hall v. Sampson, 35 N. Y. 274; Michelson v. Fowler, 27 Hun, 159 (mortgagor's interest in chattel in his possession).

that all such property,58 debts, credits and effects, and all rights and shares of stock, with all interest and profits thereon, and all dividends thereon or therefrom [and all bonds, promissory notes, and other instruments for the payment of money] of the said defendant [or, of said defendants, or either or any of them] 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; 60 and you are hereby required to deliver all such moneys, bank notes, books, vouchers, papers, debts, credits, effects, evidences of title to real property, shares of stock, interest, profits, and dividends thereon [and all bonds, promissory notes and other instruments for the payment of money], and all property capable of manual delivery, into my custody without delay. And I

A legacy due from an executor may be attached. Cummings v. Garvin, 65 Me. 301.

Also money deposited with clerk of court in lieu of undertaking. Dunlop v. Patterson F. Ins. Co., 74 N. Y. 145.

As to what may not be:

A debt owing by a foreign corporation to a non-resident. Douglass v. Phoenix F. Ins. Co., 138 N. Y. 209; Blanc v. Tennessee, etc., Co., 2 App. Div. 248, 37 N. Y. Supp. 906. Or by a non-resident to another non-resident. Carr v. Corcoran, 44 App. Div. 97, 60 N. Y. Supp. 763.

Goldzier t. Young, 1 City Ct. 84 (money in receiver's hands).

Otherwise of a receiver of a foreign corporation appointed in the State of its creation. Dunlop v. Patterson F. Ins. Co., 74 N. Y. 145.

Remmey v. Gedney, 1 City Ct. 28 (salary of public officer). See, also, Columbian Institute v. Cregan, 11 Civ. Pro. Rep. 87.

Lawrence . Bank of Republic, 35 N. Y. 320; Matter of True, 4 Abb. N. C. 90, s. c. as Matter of Freel, 55 How. Pr. 386; Matter of Foley, 10 Daly, 4; Throop Grain Cleaner Co. v. Smith, 3 How. Pr. (N. S.) 290 (proceeds of sale of assigned property).

Equitable interest of a beneficiary under a trust is not subject to attachment. Fisk v. Park, 77 App. Div. 422, 79 N. Y. Supp. 327.

Money of a debtor, deposited in a bank by another in the name of the latter, to whom the bank has given credit therefor, is not subject to at

tachment. Greenleaf v. Mumford, 4 Abb. Pr. (N. S.) 130, 50 Barb. 543, 35 How. Pr. 148.

58 Shares owned by a non-resident defendant in the stock of a foreign corporation cannot be levied on under an attachment, though the officers of the corporation are within the State, engaged in carrying on the corporate business here. Plimpton v. Bigelow, 93 N. Y. 592, 13 Abb. N. C. 173. But see Winslow v. Fletcher, 53 Conn. 390, 4 Atl. Rep. 250; People's Bank v. Gridley, 91 Ill. 457, 8 Repr. 76. Contra, if the stock is in this State, under pledge. Simpson v. Jersey City Contr. Co., 165 N. Y. 193.

Nor bonds executed by a railroad company, and in the hands of its agents, to be negotiated for its use. Coddington v. Gilbert, 17 N. Y. 489.

59 A check being an "instrument for the payment of money," must be attached by a manual seizure. Casper v. Wallace, 50 N. Y. Super. Ct. 147, aff'd, 101 N. Y. 649.

60 The property attached does not have to be specified (O'Brien v. M. & T. Ins. Co., 56 N. Y. 52; Gittings r. Russel, 114 App. Div. 405), but if an attempt is made to specify property. then only that accurately described in the notice is subject to the levy. Hayden v. National Bank, 130 N. Y. 146 (notice relating to property of individual defendant does not bind his interest in an account with a firm of which he is a member).

61 The expression " property incapable of manual delivery to the sheriff,"

« PreviousContinue »