People v. National Mutual Ins. Co.

erty safely so that it might be devoted to the satisfaction of the execution in the legal way. The letter which authorized the sheriff to select a particular person as custodian would probably have had the effect to relieve him from liability, if the property had been lost because of the negligence of that particular custodian. But it would not have any other effect, unless, by a reasonable construction of the letter, it can be said that the sheriff was directed to do nothing more with the property than to leave it in the custody where he had placed it. The letter cannot be said to require the sheriff to sell, or to forbid him from selling, the property according to the directions of his writ. Much less can it be said to show an intention on the part of the judgment creditor that the writ should not be executed. The case is not at all like that of Robertson v. Lawton (91 Hun, 67), even if that case was well decided, which we are not prepared to admit.

It is suggested that the sheriff acquired no lien by his levy upon the promissory note, because a promissory note is not a subject of levy upon execution. Undoubtedly, a chose in action of that nature cannot be levied upon by virtue of an execution, against the objection of the judgment debtor. Ingalls v. Lord, I Cow. 240. If that were all there was of the case, no lien could be acquired by this act of the deputy sheriff. But while the judgment debtor, holding the promissory note, is undoubtedly at liberty to say that such a note cannot be levied upon by virtue of an execution against his property, yet if, when the execution is presented to him, he turns over to the sheriff the promissory note with the intention that the latter should hold it subject to the execution, there is no reason why he should afterwards be permitted to say that the sheriff did not acquire the right to hold that property precisely as he should hold any other property. There is nothing in the nature of this particular property which renders it improper that it should be taken into the custody of the sheriff with the consent of the judgment debtor. The statute

People National Mutual Ins. Co.

authorizes a levy upon any chose in action made by a corporation, municipal or otherwise, or by a public officer, which is in terms negotiable or payable to the bearer or holder. Code Civ. Pro. § 1411. It is quite true that that section does not include promissory notes made by private persons; but there is no real distinction between the two kinds of property, and no reason why, if such a note as this should be turned over to the sheriff, he should not be permitted to hold it and insist upon his lien upon it. But in this case, in addition to the promissory note, the secretary of the company turned out to the sheriff the shares of stock. So far as they belonged to this company, they were clearly leviable, and the sheriff was authorized to sell the interest of the company; and if the actual owner of the stock, who pledged them as security, found no fault with it, we can see no reason why the sheriff might not properly hold them as against anybody else. We conclude, therefore, that the sheriff acquired, by the act of the secretary of the company, a valid lien upon the property which was turned out to him to apply upon this exe

cution.

Opinion by RUMSEY, J. VAN BRUNT, P. J., WILLIAMS, INGRAHAM and PARKER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs and disbursements of the reference.

Charles S. Foote, for the claimant, appellant.

Hamilton R. Squier, for defendant, respondent

Note on Levy of Attachment and Execution on Choses in Action.

NOTE ON LEVY OF ATTACHMENT AND EXECUTION ON ChosES IN ACTION.

I. In General.

II. Attachment.

III. Execution.

In general.] The Code of Civil Procedure contains provisions for a levy under an attachment which are much broader than the provisions for a levy under an execution. The reason for this is that a complete scheme for relief under an execution, where difficulties are experienced in seizing property or choses in action, is found in proceedings supplementary to execution, while in cases of attachment no such remedy would be possible without injustice to the defendant before the plaintiff had established his rights by reducing his claim to judgment. It seems to have been the policy, therefore, of the framers of the Code to allow a lien to be created by attachment upon property which could not be seized under an execution if an attachment had not first been issued. And further than this the remedy by attachment is allowed in cases where there is danger that the property of the attachment debtor may be removed from the jurisdiction of the court, which is an additional and perhaps the main reason why the officer is allowed to take or create a lien upon property, rights and things in action which could not otherwise be taken upon execution.

"In order to constitute a valid levy under an execution it is not necessary that the sheriff should take actual possession of the property levied upon. Crocker, on Sheriffs, $436. And hence a course of procedure which may create a valid lien by levy under an execution is of no effect when an attachment is the process under which the procedure is taken." Warner v. Fourth National Bank, 12 Civ. Pro. R. 186, 193.

Attachment] Subdivision 3 of section 649, of the Code of Civil Procedure, specifies how a levy may be made under an attachment upon personal property of the attachment debtor which is not capable of manual delivery consisting of demands, etc., against third persons, as follows: Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it con

Note on Levy of Attachment and Execution on Choses in Action.

sists of a demand, other than as specified in the last subdivision (bond, promissory notes, or other instrument for the payment of money), with the person against whom it exists; or, if it consists of right or share in the stock of an association or corporation, or interest or proits thereon, with the president, or other head of the association or corporation or the secretary, cashier, or managing agent thereof."

Subdivision 2 provides that in the case of a bond, promissory note, or other instrument for the payment of money the sheriff must take it into his actual custody.

Under this section (subdivision 3), the sheriff can levy upon a chose in action, strictly speaking, which is not capable of manual delivery, by leaving with the person against whom the demand is held by the attachment debtor of a copy of the warrant and a notice of the particular demand attached. But, except in the cases hereafter noted, a prior assignment of the demand or claim, although in fraud of creditors, will defeat an action by the sheriff or the attachment creditor in aid of the attachment. Anthony . Wood, 96 N. Y. 181; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; Harding 2. Elliott, 12 Misc. 521. The sheriff may disprove the fact of the assignment, although he cannot show that it was made with the intent to defraud creditors. Id. See, also, Hamburger v. Baker, 35 Hun, 455; Weller v. J. B. Pace Tobacco Co., 2 Supp. 292; Thurber v. Blanck, 50 N. Y. 80; Bank v. Dakin, 51 N. Y. 519; Smith . Longmire, 24 Hun, 257; Conner v. Webber, 12 Hun, 580; Matter of True, 4 Abb. N. C. 90.

But the sheriff may seize tangible personal property capable of manual delivery which has been disposed of in fraud of creditors and defend an action against him on the ground that such disposition was fraudulent. Rinchey v. Stryker, 28 N. Y. 45 ; S. C., 26 How. Pr. 75.

The exception spoken of above is where the attachment is levied against a person upon whom the summons cannot be served personally, and it is served without the State or by publication pursuant to an order therefor, and the defendant is in default. Then the sheriff or the creditor can bring an action to set aside the transfer of a chose in action as made in fraud of creditors before judgment is entered. Code Civ. Pro. § 655, as amended by L. 1889, c. 504; Whitney v. Davis, 3 N. Y. Ann. Cas. 88; Note on Action in Aid of Attachment, Id. 92; First National Bank of Salem v. Davis, 88 Hun, 169; s. c., 35 Supp. 532. The sheriff can levy an attachment upon the inter

Note on Levy of Attachment and Execution on Choses in Action.

est of one partner in a firm. Atkin v. Saxton, 77 N. Y. 195; Seligman v. Falk, 13 Civ. Pro. R. 77.

The interest of a vendee in possession of real estate under a contract of purchase upon which he has made payments is subject to attachment. Higgins v. McConnell, 130 N. Y. 482; S. C., 42 St. R. 363.

See Note on How Far Rights of Action can be Subjected to Attachment, 28 Abb. N. C. 283.

The courts have under special circumstances granted relief in the nature of an injunction to prevent a threatened transfer of property to defeat an attachment, in cases not mentioned in the Code. People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; Falconer v. Freeman, 4 Sandf. Ch. 565; Bates v. Plansky, 28 Hun, 112; Keller v. Payne, 22 Abb. N. C. 352; Tannenbaum v. Rossenog, Id. 346, 354

As to what are sufficient allegations in a complaint in an action in aid of attachment, see Backus v. Kimball, 27 Abb. N. C. 361; S. C., 62 Hun, 122; 16 Supp. 619; 41 St. R. 446; Note on Creditor's Suit on Attachment Before Judgment, 23 Abb. N. C. 9.

A contingent liability cannot be attached as a chose in action. Excelsior Steam Power Co. v. Cosmopolitan Publishing Co., 80 Hun, 592.

A debt due from a foreign corporation to a non-resident debtor cannot be attached by a resident creditor of such non-resident debtor. Wood V'. Furtick, 17 Misc. 561; Douglass . Phenix Ins. Co., 138 N. Y. 209.

In the former of the two cases last cited three insurance companies which were incorporated under the laws of Great Britain and which had their principal offices for the transaction of business in this country in the city of New York, were indebted to the attachment debtor upon fire insurance policies upon which there had been a loss, the debtor residing in South Carolina where the losses had occurred and where the amounts specified in the policies were payable. The court held that the situs of the debt was the place of residence of the creditor; that the residence of the corporation was within the domain of the sovereignty which created it, and that where neither the debtor whose property is sought to be attached, nor his debtor, is a resident of the State, the court is without jurisdiction to make any adjudication involving the payment of the debt from the non-resident debtor to his nonresident creditor, in an action by a resident creditor against his non-resident debtor.

The Code (§ 649) has not changed the inherent charac