Tausend v. Handlear , 68 N.Y.S. 77 ( 1901 )

Giegerich, J.^*

The defendant was not personally served with the summons, aud he appeared for the special purpose of moving to vacate the attachment and to dismiss the action. The motion was denied, and judgment was rendered against the defendant by default. The defendant has appealed to this court from the judgment so rendered, against him, with notice that on such appeal there would be brought up for review the order denying the motion to vacate and set aside the attachment. It is to> be regretted that so important a question as the one presented on this appeal has to be decided without the assistance of either an oral argument, or a brief on behalf of the respondents. Several grounds are urged on this appeal against the validity of the judgment, but only the first need be considered, because, in our opinion, that one is well taken.

The objection is that the warrant is void in that it contains directions unauthorized by law. The warrant is directed “ To any Marshal of the City of New York to whom the annexed summons is delivered ” and requires him “ to attach * * * so much of the goods and chattels of the said Tames Handlear within your City and safely keep the same, as will be sufficient,” etc. It seems quite plain that this direction is in excess of the power with which tiie Municipal Court of the city of New York is clothed by the statute. The Greater New York Charter (Laws of 1897, chap. 378) provides, in section 1425, “ That * * * marshals shall be assigned by the mayor to such duty within the boroughs wherein they reside respectively as is or may be provided by law.” Whatever doubt might be entertained as to these officers being strictly local, their powers and duties confined solely to the counties for which they are appointed, will be removed by reading section 1428 of such charter, which provides: “In so far as consistent with this act, the provisions of law relating to the bonds, duties, powers and fees of marshals, and all other matters concerning marshals in the city of New York, in force on the thirty-first day of December, eighteen hundred and ninety-seven, shall apply to the marshals appointed or continued in office pursuant to this title, provided, however, that the bonds of said marshals so appointed pursuant to this title shall be filed in the office of the city clerk, and that in the prosecution of the official bonds of all marshals, application for leave to prosecute the same shall be made to a justice of the supreme court at chambers in the judicial department wherein the borough for which such marshal shall have been appointed is situated, and such leave shall not be granted unless it appears that a transcript of the judgment against such marshal had been, filed in the office of the clerk of the county within which such borough is situated, and such justice may order such bond, to be prosecuted in the Municipal Court of The City of Mew York, or in the city court of The City of Mew York if such borough be within the county of Mew York or in the county court of the county wherein such borough lies, if in any other county.” Beferring now to the Consolidation Act (Laws of 1882, chap. 410) to ascertain what provisions of law were in force on the date mentioned in the section just quoted, the following are found:

“ § 1318. It (the warrant of attachment) must require the marshal, to whom the summons is delivered, to attach * * * as much of the defendant’s goods and chattels, within his county as will satisfy the plaintiffs demand, etc. § 1320. The marshal to whom the warrant of attachment is delivered must execute it * * * by levying upon and taking into his custody so much of the goods and chattels of the defendant, * * * which he finds within his county,” etc. From these provisions, therefore, it is obvious that the county is recognized as the sphere within which the marshal’s functions are to be exercised. It is true that section 1368 of the Greater Mew York charter provides: “ The municipal court in any district shall have power to send its process and other mandates in an action or special proceeding of which it has jurisdiction into any district or part of The City of Mew York for service of execution, and to enforce obedience thereto, and such process and mandates may be served in any district or part of The City of Mew York, as constituted by this act.” But this does not mean that the marshal, living in one county of the city of Mew York, can execute such process outside the limits of the county in which he resides. The Code of Civil Procedure, section 341, in defining the jurisdiction of the county courts, makes a similar provision, upon the model of which it is evident that section 1368, just quoted, was drafted, and which provides as follows: “ A county court has power, in an action or special proceeding, of which it has jurisdiction, to send its process and other mandates into any county of the State, for service or execution, and to enforce obedience thereto, with like power and authority as the supreme court.” The process of the county court can be sent into any county of the State just as the process of the Municipal Court of the city of Mew York can be sent into any part of that city, but just as the process of the County Court has to be executed by the sheriff of the county into which it is sent, so the process of the Municipal Court of the city of Hew York must be executed by a marshal residing in the county to which the process is sent. It is evident, therefore, that the new charter, in enlarging the sphere within- which the process of the Municipal Court would run, did not thereby enlarge the sphere within which the marshals are authorized to execute their functions.

The case at bar is distinguishable from that of People ex rel. Bicinelli v. Dunn, 54 N. Y. Supp. 194; N. Y. L. J., July 5, 1898, which was a proceeding by habeas corpus to inquire into the cletention of the petitioner by the sheriff -of the county of Hew York, he having been -arrested in the borough of Brooklyn by a marshal of the borough of Manhattan on an execution against his body issued upon a judgment rendered by the Municipal Court of the city of Hew York, sitting in the last above-mentioned borough. In sustaining the regularity of the detention, Mr. Justice Freedman based his decision exclusively upon the above-cited section 1368 of the Greater Hew York charter. The above-quoted statutory provisions, respecting the powers and duties- of a marshal, do not appear to have been brought to his attention. Moreover, the provisions of the Consolidation Act, section 1399, pertaining to the requirements of an execution against the person, do not, as in the case of a warrant of attachment, limit the direction to the officer to arrest the defendant within his county.

The remedy of attachment is severe and in derogation of the common law, and must, therefore, be strictly pursued. Penoyar v. Kelsey, 150 N. Y. 77. That it was in this case strictly pursued is not apparent. The action was instituted in the borough of Manhattan (Hew York county) and a warrant was executed in the borough of Brooklyn (Kings county). The residence of the marshal executing -the warrant is not stated anywhere in the record, but he seems, in- fact, to be a resident of the borough of Manhattan and -assigned to duty in that borough. This is a fact, of which judicial notice might, perhaps, have been taken in the court below, on the principle that cognizance will be taken of attaches of a court (Jones on Evidence, §109), and also in the Appellate Court (Id. § 117). But whether judicial notice could be taken of this fact, or not, need not be determined, since we think that, under the circumstances, it was at least- incumbent on the plaintiffs to show that, notwithstanding the unauthorized direction in the warrant, it was in fact executed by a marshal having the authority to act where the levy was made. As this was not shown, the judgment should be reversed and a new trial ordered, with costs to abide the event.

O’Goemait, J., concurs.

Judgment reversed and new trial ordered, with costs to abide event.

* Opinion rendered by the associate justices, after the death of Presiding Justice Beekman.— [Rep.