Brooke v. Foster

20 Abb. N. Cas. 200

Opinion

Lawrence, J.

This is a motion to vacate an order made by me on the 18th of January, instant, ordering the sheriff to permit the plaintiffs or their accountants to examine the books and papers of the defendants in the sheriff’s possession, and directing that such examination be permitted free from any interference on the part of the defendants or their assignee, etc. The motion is resisted on the part of the' plaintiffs, by affidavits showing that a large amount of the attached property is subject to liens and claims thereon, and that the object of examining the books on their part is to ascertain the nature of such liens and claims.

By section 644 of the Code, the sheriff has power to take not only the property but also the books, papers and documents relating to the attached property.

* It would seem from this that the intention of the Legislature was that the books of the debtor should be subject to the examination not only of the sheriff but of the plaintiff, for the purpose of disuovermg'what, if any, amounts are due, and what, if any, claims exist against the property attached.

The defendants rely upon the case of Garden v. Sabey (10 Weekly Dig. 33),* decided at the Special Term of the Fifth Department, in which it was held that the sheriff should allow no one to examine books attached by him except the defendant or his assignee or agents. I do not concur in that view, and it appears that in the ease of Bleier v. Davidson [reported below],† which was an action brought by an assignee to restrain the sheriff from taking possession of the books of his assignor under attachments issued to the sheriff, Mr. Justice Barrett denied the motion to continue a preliminary injunction that had theretofore been granted. As this motion is made on behalf of the assignee, the decision in that case is controlling upon mes and this motion will therefore be denied, without costs.

Order accordiugly.

There was no appeal.

The provision in question is as follows:

“§ G44. The sheriff mustjunmediately execute the warrant, by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff’s demand, with the costs and expenses. He must take into his custody all books of account, vouchers and other papers, relating to the personal property attached, and all evidences of the defendant’s title to the real property attached, which he must safely keep, to be disposed of, as prescribed in this title.”

In that case the sheriff gave the attaching plaintiff free access to the books and papers, without leave of court, and excluded the defendant and the assignee.

The decision was that the sheriff should examine the" books only for the purpose of strictly enforcing the attachment, until further action of the court. It is therefore not an authority against the power exercised in the case in the text.

In Bleier v. Davidson (Supreme Court, Special Term, April, 1884) it was held that where the possession and examination of the books of a debtor are reasonably necessary to enable the Sheriff to enforce an attachment levied on the debtor’s property, an injunction should not be granted against his taking them from the possession of an assignee for the benefit of creditors, even though the attaching creditors are impeaching the validity of the assignment on allegations that it was made in fraud of creditors. ■

Leopold Bleier, as assignee for benefit of creditors of Moses and Elias Ilenlien and Louis Wolf, brought this action against Alexander Y. Davidson, the sheriff, and a number of attaching creditors, under the following circumstances.

Ilenlien & Oo. had failed and made an assignment to plaintiff for the benefit of creditors. The attaching creditors indemnified the sheriff, who thereupon seized the goods and books of the debtors; and when sued in the N. Y. Common Pleas for trespass, etc,, the sheriff answered impeaching the assignment as made with intent to defraud creditors.

The sheriff threatening to remove the books from the assignee’s custody, the assignee brought this action in the Supreme Court to enjoin him from so doing.

The complaint alleged in the first paragraph the assignment and filing, etc.; IT., acceptance by assignee; III., issue of warrants of attachment to defendant; IV., defendant's indemnification ; V., that motions to vacate said attachments had been denied, but appeal was pending.

VI. That the books aforesaid came into the possession of the plaintiff, and contained, as he is informed and believes, entries of all the business transactions of the said assignors, and statements of accounts duo the estate of said assignors from various debtors.

VII. That the said defendant has taken possession of the said books, and threatens to remove the same from the custody of tho plaintiff under the attachment aforesaid.

VIII. That the possession and custody of such books will be absolutely necessary for the proper execution and administration of such trust as assignee, and he is advised that the general creditors of the assignors aforesaid, are entitled under the law to access and examination of said books, and as he is further advised, the defendant has no power in law under said attachment, to take away tho said books, nor to the possession of the accounts due the estate which are therein set forth, none of which accounts, tho plaintiff verily believes, have been attached by the defehdant in the manner required by law, or in any other manner whatever.

IX. That the seizure of said books will work an irreparable injury to plaintiff, that it will interfere with his duties as such assignee, and especially embarrass him in his efforts to collect the outstanding accounts, which, according to his information, amount to many thousands of dollars, and the plaintiff fears that unless he can have full and undisturbed access to and custody of said books, in order that he may ascertain when the several accounts mature, some of the debtors of the estate may become insolvent and occasion a loss to deponent as such assignee and to the estate, and in addition the rights of the various creditors of the said assignors of whom the plaintiff is the trustee, will be impaired and impeded.

X. There is no remedy by which the plaintiff can be adequately indemnified against the loss and the embarrassment to the estate, and to his administration of the trust occasioned by the removal of such books by the defendant; and this plaintiff, through Ms counsel, has applied to the defendant from interfering with said books, but the defendant declines to give up the possession thereof.

The answer, after denying the allegations in the complaint, VII,,, denied that the defendant is remediless at law, by reason of the attachment of said books of account, in this, that as defendant is informed . and verily believes, the entire accounts assigned to plaintiff amount in , actual value to §70,500, of which the plaintiff: has collected about. §57,373.74, leaving a balance to be collected of §13,120.00, whielisumis , the full measure of the plaintiff’s damages in this action, which amount. it cannot exceed.

VIII. Further answering, defendant alleged that the aggregate amount of said attachment, with interest and costs, is about $40,000, That the appraised value of the goods attached and taken away is about $20,000. That there are no other goods or property subject, to such attachments, except the accounts so assigned and th,e books of the. assignors, and unless the defendant is allowed to attach and take away said books, and collects said accounts, he will be unable to attach and safely keep sufficient assets to satisfy said attachments as by law he is commanded to do.

IX That because of Ms levies under said attachments,, and,his talcing away of said $20,000 worth of goods, the plaintiff herein as such assignee has brought an action in the court of common pleas, in and for the city and county of Hew York, againpt this defendant and his indemnitors to recover the sum of §50,000, in which action the plaintiff-if aggrieved by reason of the defendant’s, attaching and- taking- away the said books, can readily prove the amount of such damage and collect-the same from the defendant.

Barrett, J., after argument and consideration, denied the motion, with ten dollars costs.