In re the Claim of Flandrow

27 N.Y. Sup. Ct. 36

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

Opinion

Barrett, J.:

The single question presented by this appeal is whether the judgment recovered by the Chicago Bank against Van Brunt was legally attached in the suit of Hoffman against that bank. W e are of opinion that it was not, for the reason that a certified copy of the attachment was never left with the debtor, nor even with an “individual holding” the property as required by section 235 of the Old Code. It was not left with the debtor, for Van Brunt was dead when the attachment was issued, and it was not served upon any representative of his estate.

As to the other branch of the section, it might be sufficient to say that the judgment was owned by the foreign bank, and was not “held” by any individual within this State. Service was made, it seems, upon the attorney who acted for the bank in the legal proceedings which resulted in the judgment, but that service was clearly inoperative. The attorney did not “ hold ” the judgment within the meaning of section 235 of the Old Code. The judgment was not the kind of property contemplated by the phrases “ other property incapable of manual delivery,” and “ the individual holding such property,” which are to be found in the section in question. The notes upon which it was recovered undoubtedly came within this expression, and if the attachment had been served upon the attorney while he held these notes, and was prosecuting them to judgment, it might probably have been sufficient. (Russell v. Ruckman, 3 E. D. Smith, 419; Clarke v. Goodridge, 41 N. Y., 210.) But when the notes were merged in the judgment, the status was changed. The judgment, though undoubtedly a chose in action, was simply a debt due by Van Brunt to the bank, and as such could only be attached by service on the debtor. (Clark v. Warren, 7 Lans., 180.)

The language is “debts” and “other property incapable of manual delivery.” The service is to be upon the debtor or individual holding such property ; that is, holding, “not debts.” but “ other property incapable of manual delivery.” This is the true construction of the section. It distinguishes between “ debts ” which are not evidenced by a note or other written obligation, and “property incapable of manual delivery,” such as bonds, goods under pledge, and even debts so evidenced. In the one case the attachment must be served upon the debtor; in the other upon the individual actually having the bonds, goods or tangible evidence of the debt in his possession. Here there was no such individual, nor could there very well be, as the evidence of the debt was a record. A stronger case would be that of an attorney who bad possession of bis client’s books containing entries evidencing an open account duo by a customer. Yet it could scarcely be claimed that sucb attorney held the debt, witbin tbe meaning of tbis section.

The decree of tbe surrogate was right and must be affirmed, with costs.

Beady, J., concurred. Present — Davis, P. J., Baeeett and Beady, JJ.

Decree affirmed.