Citation Numbers: 2 Misc. 2d 48
Judges: Levy
Filed Date: 12/29/1955
Status: Precedential
Modified Date: 2/5/2022
One Schumer instituted an action in this court in contract against Hamburger & Co. ’s Bankierskantoor N.V., a foreign banking corporation. An attachment was procured by the plaintiff against the defendant under sections 902 and 903 of the Civil Practice Act. Pursuant to the warrant, the Sheriff levied upon certain securities here — in the possession of the Guaranty Trust Company of New York —
The Guaranty Trust Company, however — because of Werner’s claim to title — did not make delivery of the property to the Sheriff, who has thus been unable to reduce the property attached to his actual possession. Thereupon, pursuant to leave of court, Schumer was permitted to maintain the present action — in his own name and in the name of the Sheriff as plaintiffs — against the Guaranty Trust Company as defendant, for the purpose of recovering the property theretofore attached by the Sheriff. (Civ. Prac. Act, § 943.) Werner (maintaining his claim of ownership) has now moved for leave to intervene as a party in this action; and the propriety of his application is the question before me.
Subdivision 2 of section 924 of the Civil Practice Act provides that: “ 2. If any personal property attached, seized or levied upon is claimed by or on behalf of another person, as his property, at any time after an action or special proceeding has been commenced by the sheriff or by the sheriff and plaintiff jointly, to reduce to sheriff’s actual custody the personal property capable of manual delivery or to collect, receive and enforce the debts, effects and things in action, as provided in this article, the claimant, in addition to any other rights which he may have, may intervene in any such action or proceeding then pending and assert therein his right, title or interest in or to the said property.”
No precedents in point have been cited. But I should have supposed that this legislation is plain enough to warrant (if not require) the requested authorization to intervene. In opposition, the plaintiff urges that the remedy afforded a third-person claimant by subdivision 2 is alternative to that provided for in the first subdivision of section 924. I do not thus read the language of the statute. The claimant has the right to and “ may intervene ” “in addition to any other rights which he may have ”. The right which the claimant seeks to assert is “ his right, title or interest in or to the said property ” which the Sheriff has attached as belonging to another.
In consequence, Werner’s motion to intervene is granted. Settle order.