Fielding v. Lucas

60 How. Pr. 134, 29 N.Y. Sup. Ct. 22

• Court: New York Supreme Court
• Decided: September 15, 1880
• Status: Published

Opinion

Barnard, P. J.

The complaint states no legal cause of action against the defendant Lucas; he is a creditor of the firm of Walter & Fielding.

He lives in Brooklyn and commenced an action against the parties in the marine court of the city of New York to recover his debt. The partnership had an office or place of business in the city of New York. The attachment was granted against the property of the firm by the judge of the marine court, based upon an affidavit of the non-residence of the parties. The partnership goods were seized under the attachment of Lucas and others. One of the partners commences an action against his copartner to settle the partnership affairs, to terminate the partnership, and Luca's is made a party defendant and relief is asked against him, that the attachment be decreed to be void, and that he prove his claim in this action, and in the meantime, pending the action, that he be enjoined from enforcing his attachment, and that a receiver be appointed.

As to Lacas and other attaching creditors, the remedy at law against their enforcing a void attachment is adequate. The parties can release the attached property by a bond. They can move to vacate the attachment. They can defend upon the ground that the marine court has no jurisdiction of the action. If Lucas has sued in the wrong court, it is not the province of a court of equity to bring him in as a party to answer an allegation to that effect and to have his suit arrested.

It is no aid to the complaint to aver that Lucas had bad . motives in enforcing his claims in the marine- court.

If he has a good debt, and proves it in a competent court, no question will be made whether his design was to harass the parties, or one of them, or to get an advantage over other creditors.

The judgment should be reversed, with .costs to defendant Lucas.

Dykmxn, J., concurred; Gilbert, J., not sitting.