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Macdonald v. Kieferdorf.

of Civil Procedure is a mere irregularity, and that such an omission may be supplied by amendment. It is difficult to see how such a construction can be placed upon these provisions of the Code, which are mandatory, as clearly appears by the following portion thereof, applicable to the case under consideration, viz.: "The warrant must be subscribed by the judge and the plaintiff's attorney, and must briefly recite the ground of the attachment" (Id.). The requisites of the warrant are thus prescribed, and it is manifest from the language of the statute that the legislature intended that, unless these provisions are complied with, the warrant shall be void.

This view is in accord with that of the codifiers, whose reasons for the additional requirements which now appear in section 641 of the Code are stated by Mr. Throop in his Notes on the New Code, at page 129, and in which he says that the additions to this section are modelled upon a corresponding section in Title I. (section 561.) In the note to section 561 he says the second and third sentences have been added, and that the former expressly requires the order to state the grounds of arrest, so as to harmonize the provision with similar provisions relating to other provisional remedies, and with section 568, whereby the plaintiff, in opposing a motion to vacate an order of arrest, made upon proof on the part of the defendant, is, in general, confined to the grounds of arrest recited in the order.

While section 561 was amended in 1877 so as to omit this requirement, it can make no difference in the reason given by the codifiers. It was manifestly their intention to require the ground to be recited in the warrant of attachment, as section 583 expressly provides that upon a motion to vacate an attachment, made upon additional affidavits, new proof on the part of the plaintiff may be made tending to sustain any ground for the attachment recited in the warrant and no other.

Macdonald v. Kieferdorf.

In the case at bar the warrant which was vacated substantially failed to recite the ground of the attachment. It merely recited that "defendant has departed from the city and state of New York." This is not one of the grounds specified in the Code for the granting of an attachment. A person has a perfect right to depart from the city and state of New York without subjecting his property to an attachment. In only two instances can an attachment be granted against the property of a person departing from the state, and those are, when he departs either with intent to defraud his creditors or to avoid the service of a summons.

We have not, after some research, been able to find any decision touching the precise point involved. We have been referred to the case of the First National Bank v. Bushwick Chem. Works (17 Civ. Pro. 229), which does not touch the point, and it, therefore, cannot be regarded as controlling. In that case an attachment was granted upon the ground that the defendant was about to fraudulently assign, secrete or dispose of its property, while the warrant recited that it had transferred and disposed of its property fraudulently. The court said this was irregular, but as the defect had not been pointed out in the notice of motion as a ground of vacating the attachment, it could not be taken advantage of.

The difference between that case and the one at bar is plain. There the warrant on its face was a good one, as it recited a ground recognized by the Code; but in the case at bar the warrant does not recite any legal ground whatsoever.

The case of Worthington v. Dorsett (6 N. Y. State R. 861, rev'g Daily Reg., Oct. 5, 1886), which arose in the supreme court, is in harmony with the views above expressed. In that case the name of the judge who granted the attachment was omitted from the copy-warrant served. The defendants moved to vacate the at

Macdonald v. Kieferdorf.

tachment, which was denied by the judge at chambers, who held that the omission referred to was a mere irreg ularity which it was the duty of the court to permit to be remedied, and was not a good ground for vacating the attachment. On appeal, the order denying the motion to vacate the attachment was reversed, and the paper purporting to be an attachment vacated.

The appellant has cited a number of cases, which have been carefully examined and considered; but none of them are at variance with the conclusions arrived at and herein before expressed. As a result of such an examination of the cases so cited, and of those cited by the respondent, it is deemed to be not amiss to state that the following deductions have been drawn therefrom, viz.:

1. That where the form of a mandate is prescribed by the Code, it must be substantially followed, otherwise the paper will be jurisdictionally defective and void (Osborn v. McCloskey, 55 How. Pr. 345; Worthington v. Dorsett, supra; Place v. Riley, 98 N. Y. 1; and see Blossom v. Estes, 84 N. Y. 614).

2. But where the substantial rights of the defendant have not been violated, nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment (Atlantic, etc., Tel. Co. v. Baltimore, etc., R. R. Co., 46 Supr. Ct. R. 377, 409).

3. Where the paper purporting to be a mandate recites the necessary jurisdictional facts, the same will not be set aside because of erroneous recitals therein, particularly if the defect is not pointed out in the notice of motion as a ground of vacating the attachment (First National Bank v. Bushwick, supra).

4. That sheriffs in an action against them to enforce an alleged liability as bail cannot attack the form of the mandate placed in their hands for enforcement (Douglass v. Haberstro, 88 N. Y. 611).

Dodge v. Lawson.

Inasmuch as the warrant in the case at bar was jurisdictionally defective, the order appealed from should be affirmed, with costs.

DALY, C.J., and BISCHOFF, Jr., J., concurred.

DODGE v. LAWSON.

SUPERIOR COURT OF THE CITY OF NEW YORK, SPECIAL TERM; APRIL, 1892.

§ 820.

Interpleader-power of court on motion for—when denied because amount claimed not admitted.

The court is without power to settle the conflicting claims of parties on an application for interpleader under section 820 of the Code of Civil Procedure.

Where claim is made by two parties to the surplus arising upon a sale of certain bonds and one of them waives any tort in the transaction (so far as he is concerned) by suing for such surplus, the court cannot by ordering that the other claimant be interpleaded in the action compel him to waive any claim for tortious conduct by the defendant in the transaction, nor can it limit the amount of said claimant's demand for said act.

An interpleader cannot be ordered where the amount offered to be deposited by the defendants is less than that claimed by the plaintiff, although the defendants may in the judgment of the court offer the proper amount. The question must be determined on the trial of the motion and only be granted where the defendants admit the full and same amount claimed as due to one or the other of the claimants; even a dispute as to interest defeating the motion.

A motion for an interpleader cannot be granted where the defendant is a wrong-doer as to either party.

(Decided April, 1892.

Dodge Lawson.

Motion by the defendants that Charles W. Gould, as assignee of the firm of Field, Lindley, Weichers & Co., be interpleaded in the action and substituted as defendant in their stead.

The complaint alleges in substance that on and prior to November 30, 1891, plaintiff was the owner and entitled to the possession of $41,000 of negotiable railroad bonds of the value of about $30,750, with the 41 coupons thereon for $25 each, which were due by their terms December 1, 1891; that prior to those dates the plaintiff had delivered the bonds and coupons to Field, Lindley, Weichers & Co., as security for a loan; that, without plaintiff's knowledge or consent, said firm delivered said 41 bonds with 54 other like bonds and $100,000 of other railroad obligations to defendants, as security for the payment of loans aggregating $120,000; that the moneys obtained by Field, Lindley, Weichers & Co. were applied to their own use; that the 54 other like bonds and the $100,000 of other obligations were the property of the Union Pacific Railway Co; that on December 14, 1891, the amount and interest of the loans made by defendants to said firm aggregated $121,706.21; that on that day the Union Pacific Railway Co. paid defendants $96,116.66 on account of said sum, and received from defendants all of said securities excepting the 41 bonds of the plaintiff, leaving a balance due defendants of $25,589.55; that on the same day defendants sold plaintiff's 41 bonds for $29,110 and collected on his coupons $1,025, the last two items making together $30,135, which was applied by defendants in payment of the aforesaid balance of $25,589.55, leaving a surplus of $4,545.55, which the plaintiff seeks to recover.

The defendants claim that the sale and collections aggregated $29,673.75, instead of $30,135, as claimed by the plaintiff, and that the surplus, therefore, amounts to

VOL. XXII.-8.

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