WOODWARD against STEARNS

WOODWARD against STEARNS. New York Common Pleas; Special Term, March, 1871 Attachment.—Jurisdiction of Common Pleas.— Omission to file Papers.—Time of Commencing Action.—Unlicensed Broker. An attachment may be issued, as a provisional remedy under the Code of Procedure, in an action in the New York common pleas against non-residents, before personal service of the summons, provided the summons has been previously issued, and is, before levying the attachment, personally served within the county of New York, on the defendant, or on one of several jointly indebted. An attachment will not be vacated, as matter of course, for failure to file within ten days, the papers on which it was issued. An action by a broker to recover commissions earned upon negotiating a contract, the commissions being computable upon the amount to become due to his employer under the contract, may be commenced ■ before the contract has been fully performed, the plaintiff, however, taking the risk of being able to prove the amount of his compensation if the trial takes place before such performance. The fact that the broker had no license under the internal revenue laws, does not affect his right to recover upon an express contract for fixed compensation. Motion to vacate attachment. On August 12, 1870, a summons for money demand on contract was issued in this action, and an affidavit was made by John G-. Woodward, the plaintiff, stating that the defendants, Stearns and Clark, were copartners in business, and both of them were non-residents of this State; that they were indebted to the plaintiff “ in the sum of forty thousand dollars for commissions which said defendants agreed to pay to deponent for his services in and about the obtaining of a contract by the defendants to construct the TSTew York, Housatonic and Northern Railroad, said commissions being two and one-half per cent, upon the amount payable to the defendant under said contract, which amount, as deponent is informed and believes, is sixteen hundred thousand dollars.” The affidavit further stated that said commissions were fully due, that the defendants had property within the State, namely the said contract with said railroad company, and money due and to become due to them thereon, and other property, and that a summons had been issued in the action. On September 26,1870, the summons was served on the defendant Clark, alone. On September 27, 1870,'the affidavit and summons were presented to Chief Justice Daly, who thereupon issued a warrant of attachment against the partnership property of the defendants Stearns and Clark, which was served upon the railroad company. The affidavit was not filed until October 10, 1870. The defendant Clark alone appeared in the action, and issue was joined. On December 16, 1870, an order to show cause why the attachment should not be vacated was granted, and the following grounds of the motion were specified : “ because of the matters appearing in said affidavits, summons, complaint, warrant, and other proceedings, and such further affidavits as may be served under this order ; and further because the summons in this case' has not been served on the defendant Stearns, nor any publication thereof .has been commenced within the thirty days next following the issue of the summons ; also because it appears from the complaint and from the plaintiff’s affidavit of August 12, 1870, upon which the alleged warrant of attachment was obtained, that the plaintiff had no cause of action against, and that nothing was due to him from the defendants, when the suit was commenced or the warrant was issued ; and farther because, if the defendants were in any wise liable to the plaintiff, their liability is not such or the same as is set forth in said affidavit and complaint; also because said warrant has not been executed against the property of the defendants or of either of them, but only against the property of another party, namely, Bartholomew McDonough, or Clark and McDonough ; and because said affidavit for the attachment was not filed in the office of the clerk of the county of New York within ten days from the issuance of the warrant.” Voluminous affidavits were served with the order to show cause, to the effect that the defendant Stearns had sold his interest in the contract to one McDonough, and denying the plaintiff’s right to recover, upon the merits. Peek & Wright, for the motion to vacate the attachment. Strong & Shepard, opposed. See also Rules of 1871, No. 7, and No. 5. [MAJORITY — Joseph H. Daly, J.] Joseph H. Daly, J. This court acquires jurisdiction of an action upon contract brought against co-partners who are non-residents of this State, if the summons be personally served in the city and county of New York upon one of the copartners (Code of Pro., § 33, subd. 2). An attachment in such an action may be issued under section 227 of the Code, to attach the copartnership property of the copartners. This has been so held in the superior court of the city of New York (1 Duer, 662); that court having under the Code the same jurisdiction as the court of common pleas (§ 33). It has also been held in the superior court that an attachment may be issued in that court under section 227 of the Code, in an action against non-residents of the State before the personal service of summons; that a levy before personal service would be invalid, but that after such service the attachment might be levied (Gould v. Bryan, 3 Duer, 636 ; Zerega v. Benoist, 7 Robt., 199). The reasoning in both of these cases is fully applicable to like cases in this court, and is entirely satisfactory to me. It has been the rule followed in this court. In this case an attachment was granted by Chief Justice Daly upon an affidavit stating, among other requisite matters, that the action had been commenced by the " issuing’ ’ of the summons. This, under section 337, was enough to show that the action had been commenced in order to authorize the granting of a warrant under that section. It is not claimed that the summons was not, in fact, issued at that time; it is, however, asserted by the plaintiff on this motion, that the summons was personally served on one of the defendants (jointly indebted with his co-defendant) before the attachment was levied, and the defendant does not assert the contrary. This case seems, therefore, to be brought entirely within the rule in Gould ?;. Bryan, above cited. The attachment cannot, therefore, be set aside as irregular or invalid. My view is that in this court, an attachment under section 337 of the Code may be granted whenever it shall appear (with the other necessary facts) that the action has commenced by the issuing of the summons ; and that, if the same attachment be levied after personal service of the summons in this county the levy is valid. As regards the points made on this motion involving the merits of the plaintiff’s claim it is enough to say: 1. That the practice of the court is to decline to try the action upon affidavits, on such a motion, where the affidavit on which the attachment was originally granted “specifiesthe amount of the claim and the grounds thereof,” and shows that a cause of action exists (section 229 of Code); and the affidavit in this case seems a compliance with that section. 2. That it seems to me the action is not prematurely brought, since the plaintiff, if his statement be true, was entitled to his commission when the contract between the railroad company and the defendants was executed (which was before the commencement of this action), and the plaintiff, chooses to take the risk of being able to fix the amount of his compensation before the contract is completed, if the trial of the action takes place before that period. The failure to file the affidavit on which the attachment issued within ten days (Code, § 229), is no ground for vacating the attachment (Brash v. Wielarsky, 36 How. Pr., 253. The validity of the warrant or the proceedings on it are nowhere in the law made to depend on a compliance with the direction as to filing the affidavits. So far as the point that the plaintiff had no Federal license to act as broker is concerned, that fact does not affect his right to recover upon an express contract for fixed compensation. Motion to vacate attachment denied.