Citation Numbers: 39 Misc. 662, 80 N.Y.S. 596
Judges: Fitzgerald
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 1/13/2023
Section 649 of the Code of Civil Procedure provides how a levy under a warrant of attachment is to be made; by its first subdivision “ upon real property,” by its second subdivision “ upon personal property capable of manual delivery ” and by its third subdivision upon “ other personal property.” The words “ other personal property,” as used in this subdivision, must be held to apply to personal property not capable of manual delivery. The sheriff, upon making the levy, may become liable in two ways — to a claimant for ■ an improper levy; or to the plaintiff-for failure to make a proper levy. To protect him under such conditions provision is made for trying the claim by a sheriff’s jury, and while it is undisputed that such a proceeding is regularly provided for regarding the kinds of property embraced in the first and second subdivisions of the before-mentioned section, it is insisted that there is no authority in law for determining a claim to intangible property incapable of manual delivery, and an order is asked for restraining the sheriff from proceeding by a sheriff’s jury to try the title of attached property for the purpose of obtaining a bond (§§ 657, 658), a notice of claim by third parties as owners of the property in question having been regularly served upon him-. The property attached is a chose inaction, a debt, and the attaching creditor contends that the sheriff must proceed to reduce it to a chose in possession first and thereafter try the question of title. Reliance for this contention is reposed upon the phrase' “ goods or effects ” as used in section 657.. These words, it is argued, are words of limitation and embrace only tangible property. The question is a novel one and I have not been referred to any adjudication in this State defining the phrase. In State v. Newell, 1 Mo. 248, it was held that “ effects in law must mean everything which is subject to the laws of property and ownership, whether real or personal; and of the personalty whether of possession .or in action.” The sole purpose of trying claims by sheriff’s jury under the common law and by the Code provisions has at all times been to protect the sheriff; to enable him to require a bond from the attaching cred
Motion denied, with $10 costs.