Reynolds v. Fisher

48 Barb. 146, 1866 N.Y. App. Div. LEXIS 181

• Court: New York Supreme Court
• Decided: November 5, 1866
• Status: Published

Opinion

By the Court, Ingraham, J.

The sheriff had an attachment against the defendant. He served a copy on Greorge D. Bayard, and required him to serve on the sheriff a certificate of all property and effects, rights, and shares of stock, and debts and credits of said defendant, then in his possession or under his control, and particularly the interest of the defendant, as special partner or otherwise, in the firm of Greorge D. Bayard, &c. A certificate was served on the sheriff, by Bayard, stating that he had not any property, of any description, of Fisher’s, in his hands or under his control, excepting his interest in the limited partnership of George D. Bayard, the amount of which would depend on the liquidation of the affairs of the partnership. Upon receiving this certificate, the plaintiff obtained, ex parte, an order for the examination of Bayard under section 236 of the Code. Bayard thereupon made a motion to have such order vacated, which motion was denied, and an appeal was taken from the decision.

It appears to me, that the statute did not authorize the order for the examination of Bayard. He did not refuse to give the certificate, but gave the only certificate that he could give, viz : that the defendant had an interest as a special partner in his firm, the amount of which would depend on the liquidation of the firm. Neither the defendant, nor the sheriff, could, touch the property of the firm, or any interest which the defendant had in it. All the property was under the sole control of the general partners, and applicable to the purposes of the firm,.during its existence, and to the payment of the debts of the firm, in the first instance. The sheriff could not close up. the firm, or in any manner interfere with it. Nor were the partners bound to disclose the state of the affairs, in such a certificate. They gave all the notice the law required of an interest in the firm, unsettled and unknown. The plaintiffs could not need information as to the amount of the interest, because they had a copy of the articles of partnership.

[New York General Term, November 5, 1866.

But, independent of the question whether the sheriff could in any manner interfere with the partnership, or its property, the certificate which was given was sufficient, and precluded any further examination. The 236 th section of the Code, which authorizes an examination, only allows it when the party served with the attachment refuses to give the certificate. This has been construed as not only refusing to give the certificate, bufas applicable where the party served says he has no property whatever ; and these are the only cases in which an examination has been held proper.

In Carroll v. Finley, (26 Barb. 61,) the general term of this district held that an examination could only be where the party sought to be examined refused to give a certificate, or where it appeared he had given a false one. ' A similar decision was made by the general term of this district, in Howell v. Koppel, November general term, 1861.

The 'order in this case was improvidently granted, and should be vacated.

Geo. G. Barnard, Clerke and. Ingraham, Justices.]