Backus v. Kimball , 27 Abb. N. Cas. 361 ( 1891 )

Landon, J.

The complaint is within the letter of the statute. Section 655 Code Civ. Pro. was amended in 1889 by adding thereto as follows: “2. Where the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act; and where the defendant has not appeared in the action (otherwise than specially) but has made default and before entering final judgment, the sheriff may in aid of said attachment, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons to compel the discovery of any thing in action, or other property belonging to the attachment debtor; and of any money, thing in action, or other property due to him, or held in trust for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person, and the sheriff may, in aid of said attachment, also maintain any other action against the attachment debtor and any other person or persons, or against any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above mentioned actions must provide and direct that the said property shall be applied by the sheriff to the satisfaction of any judgment which the plaintiff may obtain in the attachment action.”

But the case stated in the complaint is not within the mischief the amendment was intended to remedy. The plaintiff could levy the attachment without the help of this new provision. Bigelow, the attachment debtor, holds a claim against this defendant for the legacy; he can enforce the claim by action under section 1819 of the Code, or by proceedings before the Surrogate under section 2717. This claim is therefore personal property incapable of manual delivery, and can be attached under subd. 3, of section 649, by leaving with the defendant a certified copy of the warrant, with a notice showing that the legacy is the property attached. If there are any facts which would prevent, impair or defeat such a levy or make it inexpedient or impracticable, the complaint does not disclose them.

The purpose of the amendment was to provide a remedy where it was necessary and proper, not to invite or authorize an unnecessary action.

It had been held that an action could not be brought in aid of an attachment to reach property fraudulently, transferred by an attachment debtor (Thurber v. Blanck, 50 N. Y. 80; Anthony v. Wood, 96 Id. 180; Throop, etc. v. Smith, 110 Id. 83). It followed from this holding that where a non-resident, owning property in this state, fraudulently transferred it, and then was sued for money upon contract, by service of the summons without the state, or by publication, pursuant to an order, and he did not appear in the action, but made default, no jurisdiction was acquired. The person of the defendant was not brought within the jurisdiction of the court of this state, for the laws of the state cannot reach beyond its territorial limits (Freeman v. Alderson, 119 U. S. 185). The fraudulently transferred property could not be attached; the court had neither person nor thing within its power (Schwinger v. Hickok, 53 N. Y. 280 ; Bartlett v. Spicer, 75 Id. 528). The amendment enables the court to establish the non-resident debtor’s title to the property and thereby to establish its jurisdiction of it. If the nonresident debtor holds the legal title, then jurisdiction of the property is acquired by levying the attachment, by seizing it, or, if incapable of manual delivery, in the manner already pointed out.

The complaint states no facts constituting any equitable cause of action. The statute provides for an equitable action, but the provision is for those who have equities making the remedy appropriate, not for' those who have none. The law provided the plaintiff an ample remedy, and any action is needless. The plaintiff’s case is within the letter, but without the spirit of the statute, and thus without the statute itself. “The letter killeth, while the spirit keepeth alive ” (Tracy v. Troy and Boston R. R. Co., 38 N. Y. 437).

The interlocutory judgment reversed with costs,. and judgment directed for the defendant upon the demurrer with costs, with the usual leave' to plaintiff to amend the complaint upon payment of costs.

Learned, P. J., Mayham, J., concurred.