Shaffer v. Mason

18 Abb. Pr. 286

Opinion

Clerke, J.

After a careful investigation of this case I concur with the principle decided by Mr. Justice Hogeboom, in Gordon a. Gaffey (11 Abbotts’ Pr., 1), viz., that the Code does not authorize an attachment as a provisional remedy in actions of tort.

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Motion granted, with costs.

In Knox a. Mason, an analogous case fojthe preceding, in the New York Superior Court, Mr. Justice Garvin, on motion of Mr. McMahon, for the defendant; Mr. Chatfield, opposed, set aside, on the same grounds, an attachment issued under sections 227 and 229 of the Code.

The same principle was also applied in Wallace a. Hitchcock (Supreme Court, First District; Chambers, July, 1862), where it was held, that an attachment was not allowable where the plaintiff sought equitable relief, such as an accounting or the foreclosure of a mortgage, as a means of reaching a recovery of money.

The opinion rendered was as follows:

Barnard, J.—I am satisfied that the words “ in an action for the recovery of the money,” do not include an action in which it is necessary that some judgment or relief, other than one for the payment of money merely, be had before the plaintiff can recover any money,—e. g., an action for the foreclosure of a mortgage. The case of Ward a. Begg (18 Barb., 139) is not a decision contrary to this view. The case did not call for any decision on this point. (See Gordon a. Gaffey, 11 Abbotts' Pr., 1.)

Upon well-settled principles, the plaintiff in this action, before he can obtain a judgment for any money to be paid him, must have a judgment for an accounting, and have an accounting thereunder. An attachment is consequently unauthorized.

As regards the provision in the order of November 5, 1853, allowing amendments to the complaint, which directs “ that said amendments be without prejudice to the attachment issued, and to the levy made under such attachment, and without prejudice to the proceedings herein,” it must be taken to have been inserted simply to guard against the effect which the mere fact of any amendment whatever (without reference to any change it may effect in the cause of action) might have.

The question as to whether an attachment can be issued in a cause of action, as presented by the amended pleading, was not before the court, and consequently the insertion of that clause cannot be deemed either a decision or expression of opinion (there being no written opinion) on that point.

The original complaint neither alleges any balance struck, nor any promise to pay a balance struck.

I am inclined to think that, under the principle of Pattison a. Blanchard (6 Barb., 539), and cases there cited, no cause of action was shown by the original complaint, other than an equitable one for an accounting, and for payment of such sum as should be found due on the accounting.

The motion must be granted, with $10 costs.

The case of Guilhon a. Lindo (No. 1) in the 9th of Bosworth's Reports, is to the same effect.