Parsons v. Sprague

65 How. Pr. 151, 37 N.Y. Sup. Ct. 19

• Court: New York Supreme Court
• Decided: May 15, 1883
• Status: Published

Opinion

Brady, J.—

Daniel J. Sprague, the appellant and one of the defendants, applied at the special term for an order vacating the attachment issued herein. The application was not made, however, nntil after final judgment' and execution had been issued thereupon. For that reason the learned justice who presided at the time the motion was made, denied it. He says: “ The motion to vacate the attachment is denied in this case for the reason that judgment has been entered and execution has been issued.”

Ho other question, therefore, was considered by him,' and the merits of the application were not passed upon.

The views of the learned justice would seem erroneous. By section 682 of the Code of Civil Procedure, it is provided that the defendant or a person who has acquired a lien upon or interest in his property after it was attached, may at anytime before the actual application of the attached property, on the proceeds thereof to the payment of a judgment recovered in the action, apply to vacate or modify the warrant or to increase the security given by the plaintiff or for one or more of these forms of relief together, or in the alternative; and section 683 provides for the manner in which the application may be made, namely, upon the papers on which the warrant was granted or upon proof by affidavit on the part of the defendant.

It appears, therefore, clearly that the legislature intended to give the defendant all opportunity of moving to vacate the attachment, notwithstanding an execution had been issued, unless there has been an actual application of the attached property, which would necessarily involve the sale. This view is confirmed by reference to section 687, which provides that the defendant may at any time after he has appeared in the action and before final judgment apply to the judge who granted the warrant or to the court for an order to discharge the attachment as to the whole or a part of the property attached. But by section 668, upon such application the defendant must give an undertaking.

There are therefore two remedies provided for the defendant for relief from the presence of an attachment, one of these being by motion, which may be made at any time before the actual application of the attached property or the proceeds thereof to the payment of the judgment, and the Other by application before final judgment, which must rest upon an undertaking, as we have already seen.

The right of the defendant to move after final judgment and execution issued seems to be an anomally, and would not be sustained except upon imperative necessity demanded by the absolute construction of the provisions of the Code, for the reason that upon the issuing of the execution and the levy of the attached property under it the attachment itself for all purposes ceased to exist. Its office has been performed and the property was in custodia legis under another process which was altogether distinct from the attachment itself and founded upon an entirely different result. But there seems to be no doubt about the intention of the legislature to extend the remedy down to the period named, “ before the actual application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action.” What the particular object of this was cannot be well divined. It may have had some connection with the right of the defendant to appeal to have his property surrendered to him during the pendency of this appeal. If that were the object it was a good one, doubtless, but we are not called upon to furnish reasons why an act of the legislature was passed. It is our duty to declare what it accomplished by it, and nothing more. Bor these reasons the order below must be reversed, with ten dollars costs and disbursements of this appeal, and the motion to deduct to be heard upon its merits.