HARMAN against REMSEN

HARMAN against REMSEN. Supreme Court, Second District; Special Term, 1863. Attachment, and Levy on Money. ío attach a debt due to the defendant in the attachment, .the notice served on the debtor must specify the debt. A notice in general terms referring to all debts and property of the defendant is not enough to give the attaching creditor priority over subsequent proceedings of other creditors. This action was brought by Andrew Harman, against George Remsen, late Sheriff of Kings County, Charles Barth, John Williams, Philip R. Asbnry, and Martin Cramer. On the 29th day of October, 1860, hfr. .Justice Allen of this court, on application duly made by John Williams and Philip R. Asbury, who are two of the defendants in the present action,' issued a warrant of attachment is favor of Williams and Asbury against the property of Charles Barth, also a defendant in this ■ action. The warrant was delivered to the sheriff of Kings County, also a defendant here, who; oh the 30th day of October,-, 1860, as was claimed, served the attachment upon moneys due-defendant Barth, in the hands of Andrew Harman, the present, plaintiff. The amount in the hands of Harman was four hundred dollars. Martin Cramer, one.of the defendants in the above entitled action (who is a son-in-law of the defendant Barth), on the 18th day of December, 1860, recovered a judgment against Barth for one thousand four hundred and sixty-nine dollars and forty - nine cents, and on the 19th day of the same month, and the very-next day after-the recovery of. judgment,-he made an affidavit; of the return of execution unsatisfied, and on the following day: an order was made and served on the present plaintiff Harman to .appear and be examined as to property belonging to Barth. He did appear and was examined, and nothing farther was done until March, 1862. In March, 1862y Cramer obtained an the order of special term of the supreme court directing Harman to pay over four hundred dollars, and interest from December 28th, 1860, to Cramer. No notice was given to the defendants Williams and Asbprv, who h.ad obtained the attachment which had been, as was claimed, levied on the fund. On the 17th of April, 1862, Harman commenced this action to have an interpleader; and paid into the hands of the county treasurer of Kings County, the sum found in his hands. Defendants Williams and Asbury, and the defendant Cramer respectively claimed that such amount should be paid over to them. Duncan McMartin, for the plaintiff. N. F. Waring, for the defendant Remsen. Elias J. Beach, for the defendants Williams and Asbury. Philip F. Smith, attorney for the defendant Cramer. [MAJORITY — Scrugham, J.] Scrugham, J. It is not pretended that the mere issuing of the attachment in the suit of John Williams and Philip R. Asbury against Charles Barth, created any lien upon the debt which was due from the plaintiff to Barth • but, it is claimed, that the action of the sheriff under that attachment was sufficient to create such lien. The Code, by section 235, provides the method in which the attachment which it authorizes shall be executed on property incapable of manual delivery. To attach a debt it is necessary that the debtor be served by the sheriff with a certified copy of the warrant of attachment, and also with a notice showing the property levied on. The defendant Harman was served with a copy of the attachment, upon which was endorsed a notice that by the attachment the sheriff was commanded to attach and safely keep all the estate real and personal of the defendant Barth within his county, except such articles as are by law exempt from execution, witli all books of account, vouchers, and papers relating thereto, and that all such property and effects, and the debts, and credits of the said Barth then in •said Harman’s possession or under his control, or which might come into his possession, or under his control, would be liable to the plaintiff in that action, and requiring him to deliver all such property, &c.,.into the sheriff’s custody without delay, with a certificate thereof. This was not such a notice as is contemplated by the 235d section of the Code as it does not specify the property levied on. The attachment only authorizes a levy upon so much of the debtor’s property as shall be necessary to satisfy the attaching creditor’s claim with costs and expenses, and yet if this could be' regarded as a sufficient notice, property of a much greater amount, and, in fact, all of the property of the debtor might be levied upon. It is evident that greater particularity is required in the notice, from the provisions of the 236d section, which enable the sheriff to compel the person owing the debt which he seehs to attach, to furnish a certificate of the amount and description of the debt; and, in fact, this notice endorsed upon the copy attachment served upon Harman should rather be regarded as a demand of such certificate than as a notice that the debt had been levied on. The obtaining 'of the certificate is a step preliminary to the levy, necessary when the amount and description of the debt are not known to the sheriff; and the levy is afterwards made by serving the person owing the debt with a copy of the attachment and a notice describing the debt levied- on. 3STo certificate was obtained by the sheriff, and it does not appear that any proceedings were taken to compel the delivery of any, or that any action was taken under the attachment. As therefore, there was no levy, the plaintiffs in the attachment suit acquired no lien upon the moneys due to Barth by Harman. This point disposes of the case and it is not necessary for me to discuss the various objections which the defendants Williams and Asbury suggest to the order under which the defendant, Cramer claims the money in court, for as they acquired no lien by their attachment they are not in a position to question it. ■ Judgment should be entered that the moneys deposited by the plaintiff with the treasurer of the County of Kings be paid to the defendant Martin Cramer, and that the defendants John Williams and Philip B. Asbury pay the costs of this action.