Whitford v. Panama R. R. Co...... 23 N. Y. 465.....

Williston v. M. S. & N. I. R. R. Co.. 13 Allen, 404..

Woodward v. M. S. & N. I. R. R. Co. 10 Ohio St. 121..
Wyman v. Hollowell & Augusta Bk.. 14 Mass. 58.

40 N. J. Law, 417...

515

55

654

CASES DECIDED

IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

COMMENCING FEBRUARY 1, 1881.

In the Matter of the Claim of WILLIAM H. FLANDROW, an alleged creditor of TUNIS VAN BRUNT.

An attorney for the successful party in an action by whom a judgment was procured is not an "individual holding such property " within the meaning of the provision of the Code of Procedure (§ 235), authorizing the execution of an attachment by service of a copy.

Accordingly, held, where a judgment in favor of an attachment debtor was attempted to be attached by service of a copy of the warrant upon one of the attorneys for said debtor, in the action wherein said judgment was rendered, that the attachment was not properly executed; and that a purchaser at sheriff's sale under execution and order of the court in the attachment suit acquired no title.

It seems that the only way to subject a judgment to an attachment is to serve the warrant upon the judgment debtor.

(Submitted January 20, 1881; decided February 1, 1881.)

APPEAL from order of the General Term of the Supreme Court, in the first judicial department, made February 6, 1880, affirming an order of the surrogate of the county of New York, denying the application of the petitioner above named, for the payment of his alleged claim against the estate of said Tunis Van Brunt, deceased. (Reported below, 20 Hun, 36.) The nature of the claim and the material facts appear in the opinion.

SICKELS-VOL XXXIX. 1

Opinion of the Court, per Danforth, J.

Abbott Brothers for appellant. The judgment comes within the meaning of the phrase "other property incapable of manual delivery," in section 235 of the old Code. (Old Code, SS 231, 462, 463, 464; O'Brien v. Mechanics and Traders' Ins. Co., 56 N. Y. 56; Clark v. Goodrich, 41 id. 210.) The attorney of the judgment creditor comes within the meaning of the phrase "individual holding," in section 235 of the old Code. (3 R. S. 362, §§ 25, 20, 22; or, see Banks & Bros. [6th ed.] R. S. 620, §§ 22, 24, 25; Stewart v. Beddleaum, 2 N. Y. 103, 106.) Such attorney is authorized by his retainer to institute proceedings supplementary to execution. (Ward v: Roy, 69 N. Y. 96.) After obtaining judgment for his client, he continues to be his agent in the collection of the money. (McDonald v. Todd, 1 Grant's [Penn.] Cas. 17.)

John E. Burrill for respondent. The attorney's authority ceased on the entry of judgment, and he did not hold it in any sense, and notice to him of the attachment was not sufficient. (Walradt v. Maynard, 3 Barb. 584; Mandeville v. Reynolds, 68 N. Y. 578.) If the judgment debt was not levied on under the attachment, the attempted sale under the execution was a nullity, and the order of the court authorizing such sale was without jurisdiction. (Old Code of 1871, §§ 237, 286, 291.) The claim of Flandrow being disputed, the surrogate had no jurisdiction to hear and determine its validity. (Tucker v. Tucker, 4 Keyes, 136; Cooper v. Felter, 6 Lans. 485.) The court had no power to order payment, or partial payment, of petitioner's claim by the special administrator, because the debts owing by the deceased exceeded, in the aggregate, the amount of the assets of his estate. (Laws of 1870, chap. 359.)

DANFORTH, J. Prior to the 1st day of March, 1867, the Marine Bank of Chicago, by Jernegan, Smith & Baldwin, its attorneys, commenced an action, in the Supreme Court of this State, against Tunis Van Brunt, upon certain promises in writing made by him, and on that day recovered judgment for the sum of $6,858.12, and the same was duly docketed in the office

Opinion of the Court, per DANFORTH, J.

of the clerk of the city and county of New York. Van Brunt died, and pending a contest relative to the proof of his will, special letters of administration were issued to Mr. Schell, the respondent herein. The Marine Bank was a foreign corporation, and on the 20th day of January, 1869, one Hammond commenced an action against it as such in the Supreme Court of this State for the recovery of money. The summons and complaint therein were served by publication, and a warrant of attachment issued against its property to the sheriff of New York city and county. A return was made by him showing the execution of the attachment upon the judgment above described, "by leaving a certified copy of the said warrant of attachment with J. L. Jernegan, the individual holding such judgment as plaintiff's attorney, with a notice showing the property levied upon." Judgment by default was subsequently entered, execution issued, and an order obtained directing the sale of the judgment recovered by the Marine Bank against Van Brunt. Upon the sale made in pursuance of this order, Hammond became the purchaser of the judgment, and through several mesne assignments the title passed, as it is claimed, to the above-named Flandrow. The special administrator refused to pay it, and thereupon Flandrow presented a petition to the surrogate of the city and county of New York, whereby he asked for an order or decree of payment. It was opposed by Mr. Schell and relief denied by the surrogate, upon the ground the attachment was not properly served, and, therefore, no title to the judgment was acquired by the petitioner. The order of the surrogate was affirmed by the General Term of the Supreme Court, and although upon this appeal the respondent relies upon several grounds for its support, it is only necessary to consider the one above referred to, viz.: that no legal service of the attachment was made.

It was provided by section 235 of the Code of Procedure, then in force, that "the execution of the attachment upon * * * any debts, or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the debtor, or individual

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