Horace Holding Co. v. Clements , 215 N.Y.S. 169 ( 1926 )

Proskauer, J.

The National City Safe Deposit Company has leased a box jointly to the defendant and her mother. The plaintiff asks an order directing the sheriff to break into this box and levy on its contents under a Warrant of attachment. Under Carples v. Cumberland Coal & Iron Co. (240 N. Y. 187) the sheriff has power voluntarily to break into a safe deposit box leased solely to an attachment debtor where there is evidence that it contains property of such debtor. But that case is not authority for the proposition that he may be ordered to break into a box leased jointly to the defendant and another person, with no showing whatever that it contains any of the property of the defendant on an affirmative oath of the colessee that it contains no such property.

The motion is denied, with leave to renew if after completion of proceedings in aid of execution it shall appear that the box contains any property of the defendant. Order signed.