Warner v. Fourth National Bank , 9 N.Y. St. Rep. 373 ( 1887 )

Van Brunt, P. J.:

The appellant claims that if the title to this paper was in the Penn Bank at the time the attachment was served, that no lien was acquired because, the sheriff did not take the paper into his actual custody.

Section 649 of the Code of Civil Procedure prescribes the method of levy under an attachment. It provides that a levy under an attachment must be made upon personal property capable of manual delivery, including a bond, promissory note or other instrument for the payment of money by taking the same into the sheriff’s actual custody. Upon other personal property by leaving a certified copy, etc.

In the case of Anthony v. Wood (96 N. Y., 180), the court expressly decided that until the officer has obtained the actual custody of the property, he has made no levy under an attachment and can make none. In that case, however, the property sought to be reached was absolutely the defendants and no one had any claim to possession except the defendant, and therefore the property was so situate that it was capable of manual delivery. But in case the property has been pledged, does a different rule prevail ?

It is claimed by the respondents that when personal property, although capable of manual delivery, has been pledged, it comes within the description of personal property incapable of manual delivery because the sheriff could not wrest it from the pledgee in defiance of his prior rights, and that this is so plain that it needs no argument to demonstrate. It would seem to be the just and equitable view to take of the question, but we cannot see how the statute can be construed in that way. The difficulty seems to be that it is not so denominated in the bond and no argument can repeal the express wording of the statute. Where the property is of a character which can be taken possession of by the sheriff, he must levy under an attachment, the Code says, by taking it into his actual custody. A promissory note is mentioned among those things in the very section as capable of manual delivery, and hence must be taken -into the actual custody of the sheriff or no levy is made under an attachment. A different rule prevails as to a levy under an execution.

In order to constitute a valid levy, under an execution, it is not necessary that the sheriff should take actual possession of the property levied upon. (Crocker on Sheriffs, § 436.) And, hence, a course of procedure which may create a valid lien, by levy, under an execution, is of no effect when an attachment is the process under which the procedure is taken. Under an attachment the levy upon negotiable securites must be made, as the court say in Anthony v. Wood (supra), quoting from the Code, by the sheriff “ taking the same into (his) the sheriff’s actual custody,who must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of the affidavits upon which it was granted. No other mode is j>reseribed. Nothing else will constitute the levy. Until the officer has obtained the actual custody he has made no levy and can make none. He is armed with power to get such custody. He may proceed by actual or special proceeding to reach that result, but until he has reached it he has made no levy and can make none. We have nothing to do with the wisdom of the rule. We can only enforce'it as it is plainly written.”

The cases cited of Clarke v. Goodridge (41 N. Y., 210), and of Brownell v. Carnley (3 Duer, 9) relate to the provisions of the old Code of Procedure. Such Code contained no such requirements as 'are contained in the Code of Civil Procedure, and if- the Civil Code has made it impossible to reach, by attachment, the surplus arising from assets pledged, as it seems to have done, it is one of those improvements which has to a very great degree destroyed the effectiveness of the process of attachment. It being conceded by the respondent that the Penn Bank was the owner of the notes notwithstanding the pledge, then no effectual levy was made and the property passed .to the plaintiff by the assignment of the Penn Bank.

The judgment must be reversed and new trial granted, with costs to the appellant, to abide event.

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, with costs to appellant, to abide event.