Tim v. . Smith , 65 How. Pr. 353 ( 1883 )

In each of the above-entitled actions the appellants, who were junior attaching creditors, sought to set aside and vacate prior attachments obtained by the respective respondents, and claimed to have been levied upon the property of the defendant, Clinton H. Smith, an insolvent debtor.

The motion was founded upon the alleged insufficiency of the affidavits upon which the prior attachments were allowed, and the allegation that the appellant had acquired a lien by virtue of a subsequent attachment upon the same property covered by the prior attachments. The only proof of the latter fact was contained in an affidavit made by the appellant's attorney, and entitled in the above actions, reading as follows: "That he is attorney for the plaintiffs in an action brought in this court, in which Nicholas Schroeder and Henry C. Seavers are plaintiffs, and the above-named defendant is defendant; that on or about the 17th of March, 1882, an attachment against the property of the defendant was granted in said action by Hon. Charles H. Van Brunt, one of said justices, and the said warrant duly issued to the sheriff of the city and county of New York, who has by virtue thereof attached the property of the said defendant. That the said attachment is in force and said action is now pending. That prior to the issuing of the same, and on or about the 9th day of March, 1882, an attachment was granted, in the above action, against the property of the defendant, and by virtue thereof the sheriff of the city and county of New York attached the property of said defendant, being the same property attached by the attachment in the case in which deponent is plaintiff's attorney. That the attachment herein constitutes a prior lien to that referred to herein."

The question was raised in the court below that the affidavit furnished no sufficient evidence of the fact that the appellant had acquired a lien upon the same property covered by the prior attachments. We think, for several reasons, that the point was well taken. It does not appear by the affidavit quoted, which attachment was first levied upon the property in question. The date of the respective levies is not given, and the last clause of the affidavit purporting to furnish this information is indefinite and equivocal. The only proof of either of the levies in question is contained in this affidavit of the attorney, and he does not therein disclose the source of information upon which his statements are predicated. He does not even state that the attachment was duly issued, or that the several levies were duly made. Such an affiant does not necessarily have knowledge of, and cannot be presumed to know the several facts attempted to be established by his affidavit in this case. Their existence depends not only upon the official action of several persons acting independently of each other, but also upon the legal sufficiency of the papers upon which their action was based. It is difficult to see how an attorney can acquire such knowledge of the several facts required to be proved on this motion, as entitles him to give legal evidence of their existence.

Proof of a subsequent valid levy upon the same property covered by the prior attachment is a necessary condition to the right of a subsequent creditor to initiate a proceeding to vacate the prior attachment. (Code of Civil Procedure, § 682.) Until this fact is established by legal evidence he is a mere stranger, having no right to intervene. The opinion of an attorney that a lien has been secured, although put in the form of an affidavit, falls short of the evidence required to establish the jurisdictional fact entitling a general creditor to interfere in the disposition of his debtor's property.

In Ruppert v. Haug (87 N.Y. 141) and Steuben County Bank v. Alberger (78 id. 252) the party intervening was a judgment creditor, and his lien was secured by a levy upon execution. A manifest distinction has always been made between the position of judgment and general creditors. The authorities referred to by the appellant, therefore, do not support the propositions to which they were cited.

But a still more serious objection to this motion is disclosed by other undisputed facts. After the prior attachments were issued, and apparently before the attachment of the moving creditor had come into the sheriff's hands, an agreement in writing was entered into between the plaintiffs in the prior attachments and the assignee of the insolvent debtor, by which said plaintiffs impliedly abandoned any attempt to perfect a levy upon the property of the debtor, in consideration of the agreement upon the part of the said assignee to hold the sum of $10,000 in his hands and to pay it over to the plaintiffs in the prior attachment suits in case they eventually obtained judgment in such suits, and said attachments had not in the meanwhile been vacated and set aside. This agreement is supplemented by the affidavit of the sheriff holding each of the several attachments referred to in these proceedings, verified on the 7th day of April, 1882, and alleging not only that he had not levied upon, or acquired a lien upon any property by virtue of either of said attachments, but that he had never been able to discover property of the defendant in such attachments liable to be levied upon. There is no legal evidence in the case tending to controvert either the agreement or the facts stated in the affidavit of the sheriff. The affidavits of the several attorneys, produced by the moving creditor, stating that the sheriff did levy upon property under said attachments, without disclosing their means of knowledge, or the time when, or the property upon which the pretended levy was made, amount simply to the opinions of the affiants, and do not constitute sufficient proof of the fact alleged, to raise a question of evidence as to its existence.

It, therefore, conclusively appears that neither the appellant nor the respondents in this appeal have liens either upon the same, or upon any property belonging to their mutual debtor, and that the appellant has no legal interest in the question as to the validity of said prior attachments. Such attachments do not stand in the way of the levy of the appellant's attachment upon any property which he may discover liable to be seized thereon. The appellant can have no interest in the agreement made between the assignee of the debtor and the prior attachment creditors, for the reason that the only obligation of the assignee thereunder is to the prior attaching creditors, and such obligation cannot inure to the benefit of other parties. The sheriff has never had possession of, or any interest in the moneys thereby agreed to be retained and paid over by the assignee; and the only effect of that contract is to create a liability upon the part of the assignee, to the prior attaching creditors, upon the happening of the contingencies therein provided for. The sheriff can maintain no action upon, and has no rights under such agreement. So far as his attachment proceedings are concerned the appellant's interest in the property of his debtor can be reached or secured only through his process in the hands of the sheriff, and that is ineffectual to reach a right of action secured by contract to the prior attaching creditors alone. It thus appears quite evident that the appellant has not brought himself within the requirements of the Code entitling him to move to vacate a prior attachment.

The orders should, therefore, be affirmed with costs.

All concur, except ANDREWS, J., absent.

Orders affirmed.