Jaffray v. Brown

24 N.Y. Sup. Ct. 575

• Court: New York Supreme Court
• Decided: May 15, 1879
• Status: Published

Opinions

Daniels, J.:

The notice in this case was filed in the office of the clerk of Chenango county, for the reason that an attachment was issued in the action in favor of the plaintiffs and against this defendant.

It is stated in the affidavits, made on behalf of the defendant, that the attachment was not delivered to the sheriff or levied upon any real estate in the county of Chenango, and that is not denied in the affidavit made on behalf of the plaintiff; but it is stated, in general terms simply, that -an attachment had been issued in the case.

How it was issued, or whether it was in fact delivered to the sheriff of that county, was not affirmatively made to appear ; and, on that account, it may be inferred, as the opposing affidavits tended to establish the contrary, that no such delivery and seizure of this real estate was ever made by the sheriff under the attachment which had been allowed.

But it does not follow, because the attachment was not delivered to the sheriff or served upon the property, now proposed to be sold by means of the execution, that the notice should have been set aside upon the motion. The notice, in order to be effectual for any purpose in the plaintiffs’ favor, was required to contain a description of the defendant’s property in that county, which it was proposed to affect by mcaiis of the action. (Code of Procedure, § 132.) No such notice as that was filed in this case. The only description which was given in the notice was as follows: “All the real property of the defendant Brown, or in which she may have an .interest, situate in Chenango county, New York.” This notice described nothing, and consequently was not a compliance with what was required on this subject by section 132 of the Code.

It was, consequently, a nullity for that reason, as well as for the additional fact, probably existing in the case, that no seizure of any real estate in the county of Chenango was ever made by the sheriff under the attachment issued in the case, but never actually delivered to the sheriff for service ; and, being a nullity, it was-not necessary that a motion should be made to sot it aside, and its denial could not affect any substantial right of the defeated party. The notice was inoperative and ineffectual in and of itself. Upon that subject, it has been held that, where a notice is filed that is not authorized by the statute, it is a nullity, and being a nullity, it can affect no substantial right of the defendant in the case. It was too general in this case to comply with what had been required, and as the attachment had probably not been delivered for service, no necessity existed for setting the notice aside. On the contrary, under the authority of Mills v. Bliss (55 N. Y., 139), the defendant was wholly unaffected by it. There was no necessity for this motion, for the defendant could not be injured by a notice of that irregular description standing upon the files of the clerk’s office of the county of Chenango. The motion was, therefore, properly denied, and the order in this case should be affirmed, without costs to either party.

Ingalls, J., concurred.