Courtney v. Eighth Ward Bank

14 Misc. 386, 35 N.Y.S. 1049, 70 N.Y. St. Rep. 744

• Court: New York City Court
• Decided: November 15, 1895
• Status: Published

Opinion

Van Wyck, J.

Sheriff Courtney claims to have levied an attachment granted by Justice Yank of the Supreme Court in the action of Edward F. Rice ag’ainst the Cowles Engineering Co. upon the credit of the latter for $1,485.46 in the defendant bank. Judgment was rendered in favor of the defendant, and from that this appeal is taken.

The Code of Civil Procedure (§ 649, subd. 3) provides that property incapable of manual delivery may be attached “ by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same,” and section 650 provides that such person must furnish the sheriff a certificate specifying the property'so held. On August 26, 1893, the sheriff left with "the defendant a copy of such warrant of attachment, with the title of the action and the words “A copy” “Warrant of attachment ” indorsed thereon, and also with the following indorsement thereon, duly signed, viz.:

“ To Eighth Ward Bank : You are hereby notified that the deposit of the Cowles Engineering Co. in your bank and the indebtedness owing it by your bank is hereby attached by virtue of the annexed warrant. Dated Aug. 26, ’ 93. John Courtney, Sheriff. Wm. J. Cunningham, Deputy^

The defendant failing to furnish a certificate of indebtedness in accordance with section 650, the sheriff, by letter of September ninth, reminds the defendant that on August 26, 1893, he served on it this copy of attachment, and requests it to furnish such certificate, which the defendant does on September twelfth.

The referee herein decided that this levy on August 26, 1893, was fatally defective, in that the copy of the warrant of attachment left with the defendant was not a certified copy. If he was in error in this respect, then the judgment herein must be reversed. The original warrant of attachment is always delivered to the sheriff; therefore, it is a certification by him that is called for. ' Crocker Sheriffs (3d ed.), 642, forms Nos. 140 and 141; Hayden v. Nat. Bank, etc., 130 N. Y. 146. Furthermore, the courts have favored a liberal rather than a strict construction, of,^ and1 a substantial rather" • than- a technically exact. compliance witli, the provisions of ¡ section 649. of the Code of Civil Procedure. Hayden v. Nat. Bank, 130 N. Y. 146; Warner v. Fourth Nat. Bank, 115 id. 251; O’Brien v. Ins. Co., 56 id. 52; Adams v. Speelman, 39 Hun, 35. To" certify “is to testify in Ayriting.” , Anderson’s Diet, of Law.' The plain object of this provision' is to' furnish the holder oí'.such property a written .declaration • of the. official custodian of the Warrant of attachment under ■ his hand that the paper left AVith him is a copy. The sheriff . .r did leave with defendant a copy of such watraiit with the indorsement thereon “A copy,” “ Warrant. of attachment,” , and did inform defendant in writing, under his hand, that he attached the Cowles Engineering ‘Company’s deposit by virtue of the annexed warrant of attachment, the paper so served: We think the sheriff' has substantially complied With this -provision. "

Judgment must be reversed and new trial ordered, with. . costs to abide the event.

Clement, Oh. J., and Osbobne, J., concur:

'Judgment rwersed and new trial ordered, with costs to abide event.