People v. Mutual Ben. Life Ass'n of America , 86 Hun 219 ( 1895 )

VAN BRUNT, P. J.

The defendant in this action is a domestic corporation, and proceedings having been taken for its dissolution, on the 20th of October, 1894, a judgment dissolving such corporation was entered in said action, which judgment contained an injunction clause restraining all persons whatsoever from commencing any action or proceeding against the defendant, or from taking any further proceedings in any action or proceeding-already commenced. It is claimed that, prior to the entry of this, judgment, the appellant, Thomas C. Smith, obtained and caused to-be levied an attachment upon the property of the defendant in the-state of Connecticut; and the only question necessary to be determined upon this appeal is whether such attachment was levied prior to the entry of the judgment aforesaid or subsequent thereto.

It is clear that, in order to maintain his lien upon the assets of' the corporation, no matter where they may be situated, the appellant, Smith, must show that such lien -existed prior to the entry of the judgment. This fact, it is claimed upon the part of the appellant, Smith, has been shown by the papers which were used upon the motion in the court below. Upon an examination of these papers, we find no proof whatever as to what, under the laws of Connecticut, constitutes a valid levy. It is true that in one of the affidavits filed upon the part of the appellant a conclusion is stated, but no facts as to what the law of the state of Connecticut was in that respect.- We further find that the sheriff' makes two contradictory returns, the later one being equivocal in its language, and evidently false in respect to its date. In the return first appearing in the papers the sheriff certifies under date-October 22, 1894, that he then and there levied the attachment. Upon the part of the appellant, a certificate of the same sheriff is offered in evidence, bearing date the 17th day of October, 1894, in which the sheriff certified that he levied the attachment on the-17th day of October, and left with the garnishee a true and attested copy of the writ, summons, and order of notice, which was. manifestly false, as the order of notice was not made until the 19th of October, 1894. No reliance could be placed upon certificates of' this character, as they are manifestly untrue. The court was correct in disregarding the same, as being utterly unreliable, and affording no basis for a judgment. There would seem, therefore, to be no reason for interfering with the order of the court below so far as it was appealed from, and it should be affirmed, with, costs. All concur.