Clark v. Warren

7 Lans. 180

• Court: New York Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

By the Court—

Gilbert, J.

The judgment below must be affirmed. The proceedings under the attachment were ineffectual to reach the debt due from Mr. Warren to the defendant in the attachment, for the reason that the sheriff did not serve upon him any notice showing that he had levied on such debt. That debt was a mere chose in action, and incapable of seizure by the sheriff. (Code, §§ 235,236 ; Orser v. Grossman, 11 How., 520; Clark v. Goodrige, 41 N. Y., 210 ; Ransom v. Minor, 3 Sand. S. C. R., 692.)

We think, also, the sale by the sheriff of the debt was illegal. Code, § 237, sub. 2, expressly excepts choses in action from property that may be sold, and subdivision 5 provides in what manner they shall be made applicable to the payment of the judgment recovered by the creditor in the attachment, namely, by requiring the sheriff to collect the same and apply the proceeds to the payment of the judgment.

Judgment affirmed.