Goodkind v. Strickland

3 Daly 420

Opinion

By the Court.

Footnotes

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Robinson, J.

The judgment in this action was obtained in the Marine Court, in an action commenced by attachment on the ground of non-residence of the defendants. FTo personal service was ever made on any of the defendants, nor did they appear in the action. The attachment was levied on some leasehold property in the city of FTew York.

After the judgment was recovered, a transcript was filed in the office of the clerk of the city and county of FTew York, upon which the plaintiffs issued an execution out of this court to the sheriff of Westchester county.

This execution has been set aside on motion, and an appeal is taken from that order. Proceedings by way of attachment, when the defendant is not personally served and does not appear, are in the nature of actions in rem, and an execution on the judgment can only be levied upon, or enforced against, the property seized under the attachment. (Code, § 237 and Laws, 1831, chap. 300, § 39, made applicable to Marine Court by § 47, and see Cooper v. Roe, U. S. Sup. Court, Dec. ’70; N. Y. Transcript, Feb. 7th, ’71.)

The attempt of the plaintiffs to enforce their judgment against any other property, either by the filing of a transcript in the office of the clerk of Westchester county, or issuing an execution to the sheriff of that county, was unauthorized in law and prohibited by statute (§ 39 of act of 1831).

The order appealed from should therefore be affirmed with costs.

Present—Robinson, Loew, and Larremore, JJ. .