Backus v. Kimball

BACKUS v. KIMBALL. N. Y. Supreme Court General Term, Third Department ; September, 1891. 1. Attachment. What subject to seizure!] Since a legatee may maintain an action under the Code Civ. Pro. § 1819, or proceedings before the surrogate under § 2717 to compel the payment of a legacy to be paid out of the proceeds of the sale of real estate devised in trust for that purpose to the executor, the right to such unpaid bequest is personal property incapable of manual delivery, and may be attached under Code Civ. Pro. § 649 subd. 3, by leaving with the executor a certified copy of the warrant with a notice showing that the legacy is the property attached. 2. Action in aid of Attachment.] Although a complaint setting forth a claim of an attachment debtor to an unpaid legacy may be within the letter of Code Civ. Pro. §655 subd. 2.—pro-viding that where a summons was served without the state or by publication and defendant has made default, before judgment the sheriff may in aid of the attachment maintain an action against the attachment debtor or other person to compel discovery of any thing in action, etc.,—yet, as such a claim may be reached by the attachment without an action, the complaint is insufficient on demurrer, if no facts are alleged to show that under the circumstances it is inexpedient or impracticable to enforce the attachment against it withou r. an action. 3. Jurisdiction.] It seems that as an action could not be maintained' in aid of an attachment to reach property transferred by the attachment debtor in fraud of his creditors, the object of the amendment of 1889 of Code Civ. Pro. § 655; providing that the sheriff may maintain an action to compel discovery in aid of an attachment, where the summons was served without the state or by publication, was to enable the court to establish the non-resident’s title to the property transferred and thereby establish its jurisdiction. Appeal from the judgment of the Special Term overruling demurrer to complaint. The action was brought by Erastus P. Backus, as sheriff of St. Lawrence county, against William PL Kimball, as executor of Pliny Wright, deceased, under Code Civ. Pro. § 655, subd. 2 (amend. 1889). The complaint set forth the commencement of actions upon contracts against Rollin A. Bigelow, in which the summonses were served by publication, and that Bigelow had not appeared in any of the actions but had made default; that letters testamentary had issued to the defendant in this action, William H. Kim-ball, as executor of the will of Pliny-Wright; that by the will certain real estate of testator was devised to Kimball in trust with power of sale to convert 'into money; that Bigelow was entitled [to share in the proceeds as legatee. It was also alleged that attachments had issued in the action's against Bigelow. The judgment demanded was “ that the interest of the said Rollin A. Bigelow in the property of said Pliny Wright, deceasedj be ascertained and determined, and that after the same shall have been ascertained and determined, and he shall be entitled to receive the same under the said will of the said Pliny Wright, deceased, that the same be paid over to this plaintiff to be applied by him in satisfaction of the judgments which máy be obtained in the actions described in this complaint, and that an injunction may be granted herein enjoining and restraining the defendant herein from otherwise disposing of the interest of the said Rollin A. Bigelow in said property, and that the plaintiff may have such other relief and such further relief or remedy, legal or equitable, as shall be proper, together with costs of this action. The defendant demurred to the complaint for insufficiency in that it did not state facts sufficient to constitute a cause of action. The supreme court at special term overruled the demurrer and directed judgment for plaintiff unless defendant should answer. No opinion was delivered. Nelson L. Robinson, for appellant. I. The attachment debtor’s interest in the testator’s estate can be attached without resort to equity (Citing Rundle v. Allison, 34 N. Y. 183, and cases cited; Gilman v. Gilman, 63 N. Y. 41; Dubois v. Dubois, 6 Cowen, 494; Meakings v. Cromwell, 5 N. Y. 136; Manice v. Manice, 43 Id. 303, 368; Dunlop v. Patterson Fire Ins. Co., 74 Id. 145, 149; Re Flandrow, 92 Id. 256, 259; O’Brien v. Mechanics’ and Traders’ Fire Ins. Co., 56 Id. 52, 59; Warner v. Fourth Nat. Bank, 115 Id. 251; Hankinson v. Page, 19 Abb. N. C. 274; Naser v. First Nat. Bank, 116 N. Y. 492; Chipman v. Montgomery, 63 Id. 221 ; Hard v. Ashley, 117 Id. 606, 611; Gibson v. Nat. Park Bank, 98 Id. 87, 95 ; Hoar v. Marshall, 2 Gray, 251 ; Seymour v. Seymour, 4 Johns. Ch. 409; Hoyt v. Hilton, 2 Edee. 202. II. The complaint does not show that there is no property of the attachment debtor on which a levy could be made without resort to equity (Dunlevy v. Tallmadge, 32 N. Y. 457; McCartney v. Bostwick, Id. 53 ; Sloan v. Waring, 55 How. Pr. 62, affirmed 9 Week. Dig. 170). III. Prior to the enactment of Code Civ. Pro. § 655, subd. 2, an action could not be bi'ought in aid of an attachment, to reach property the legal title to which had been fraudulently transferred by the attachment debtor (Thurber v. Blanck, 50 N. Y. 80; Anthony v. Wood, 96 Id. 180; Throop Grain Cleaner Co. v. Smith, 110 Id. 83). Sections 649 and 655 were amended to provide a remedy in such cases (see note, 23 Abb. N. C. 9). George C. Sawyer (Sawyer & Sawyer, & L. P. Hale, attorneys), for respondent. As to this class of actions see note in 23 Abb. N. C. 9. See Mahr v. Norwich Union Fire Ins Co., p of this vol. for the conditions under which jurisdiction may be obtained. [MAJORITY — Landon, J.] 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.