Orser v. Grossman

4 E.D. Smith 443, 11 How. Pr. 520

• Court: New York Court of Common Pleas
• Decided: November 15, 1855
• Status: Published

Opinion

By the Court.

Woodruff, J.

The propriety of the amendment of the summons, allowed by the court below, does not properly come in question on this appeal. The amendment was granted on the motion of the appellant, and the order does not come under review upon his appeal from the judgment.

It is questionable whether a general notice, that the sheriff attaches all property in the hands of the debtor of the defendants in attachments, is a sufficient attachment under the Code. Section 235 seems to contemplate the service of a notice, specifying the particular property levied on; and section 236 furnishest he means of obtaining a disclosure of all the particulars necessary to enable the sheriff to describe the property levied upon, with all due particularity. If such disclosure be refused, it may be compelled. If a false certificate is given, no doubt an action would lie for the deceit practiced.

But I am of opinion that the amount due from the present defendant to the non-resident debtor was not attached at all, because the attachment was not served on the defendant, as directed in § 235.' It was left with a man in the defendant’s store, and no evidence was given that it ever came to the knowledge of the defendant. The suggestion that it may often be difficult to find the party to be served, is of no more force than if it were urged as a reason for not serving a summons on a defendant personally. The requirement that he shall give the sheriff a certificate, &c., (§ 236,) clearly indicates that the notice is to be served on him.

Nothing in the statute warrants the idea that it may be served on an agent. It should, I think, be served on the person who owes the debt sought to be attached.

The remedy is extraordinary; it is to operate in substance like an assignment by the absent debtor to the sheriff, and I think the statute should be strictly pursued.

Upon this ground I think the judgment must be sustained. If the judgment in the original suit is still in force, there can be no difficulty in compelling the application of the money in the defendant’s hands towards the payment, by proceedings supplementary to execution, unless some other rights have intervened.

Judgment affirmed.