CRUYT a. PHILLIPS

CRUYT a. PHILLIPS. Supreme Court, Second-District; General Term, February, 1858, Pleading.—Undertaking. In an action on an undertaking given upon the discharge of an attachment, it is not necessary to allege in the complaint that the attachment was duly issued, nor to show that the officer or court had jurisdiction to issue it, if it be shown -that the action in which it was issued was brought and pending in a court of general jurisdiction. Form of complaint on an undertaking given on discharge of an attachment. Appeal from a judgment overruling demurrer to complaint. This was an action brought in the City Court of BroQklyn, against the sureties in an undertaking given to the plaintiff, in a former action brought by him against one Biebuyck. The complaint was as follows: “ The complaint in this action respectfully shows that on or about the 13th day of September, 1854, an attachment issued out of the Supreme Court, in an action commenced by Charles Oruyt, the • plaintiff herein, against Paul M. Biehuyck, to recover—first, the proceeds of the sale of certain goods, laces, and embroideries of said plaintiff; second, for money lent by said plaintiff to said Biehuyck on his own request; and third, for money due by said Biehuyck to said plaintiff: that after-wards, and on or about the first of November, 1854, the said Biehuyck having appeared in said action, and being about to apply for a discharge of said attachment, the defendants herein, William F. Schmidt and John Phillips, undertook in the sum of §1700 that they would, on demand, pay to the plaintiff, said Oruyt, the amount of the judgment which might be recovered against said Biehuyck, not exceeding said last-mentioned amount: that said attachment was thereupon discharged, and that subsequently, and on the 5th of July, 1855, said plaintiff recovered a judgment against said Biehuyck, in said action, for §416.40, damages and costs, as appears by the record and docket thereof, duly entered and docketed, July 5th, 1855, in the county clerk’s office of Kings county: that the said Biebuyck has not paid the amount of said judgment, or any part thereof: that a demand of payment thereof to said plaintiff was duly made of said defendants, on or about the 15th day of March, 1856, which they and each of them refused ; and that they have never paid the same, or any part thereof, to said plaintiff, although often requested and demanded so to do, but are justly indebted to the plaintiff, by reason of the premises, in the sum of $416.40, with interest thereon from July 5th, 1855. “ Wherefore,” &c. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Oity Court overruled the demurrer and gave judgment for plaintiff. From this judgment the defendant Phillips appealed to the general term of the Supreme Court. J. D. Dunn for the appellant. —I. Prior to the Code, it was necessary, in pleading the proceedings of inferior courts Or officers of special jurisdiction, to state the facts conferring jurisdiction. (Cleveland a. Rodgers, 6 Wend., 438; Cornell a. Barnes, 7 Hill, 36, and note e., The People a. Koeber, 7 Hill, 39 ; Barnes a. Harris, 3 Barb., 603. II. The Code contains no provision dispensing with this necessity except section 161. III. The officer issuing a warrant of attachment is an officer of special and limited jurisdiction. 1. The power to issue attachment is' derived from special statute. (Code, § 228.) 2. The act of issuing it is not the act of the court, hut of the judge from whom the warrant is obtained, who may be either a judge of the court in which the action is brought or a county judge. (Ib) 3. The act of issuing it is an act done out of court, and a justice of the Supreme Court, like any other officer, when acting out of court, is an officer of limited jurisdiction. IV. The complaint is bad, inasmuch as it neither sets up the facts , necessary to confer jurisdiction upon the officer who issued the attachment, nor does it state that an attachment was duly issued. H. C. Cady for the respondent. —I. The facts alleged are sufficient. (Slack a. Heath, 1 Abbotts’ Pr. R. 334; Ward a. Begg, 18 Barb., 142; Loomis a. Brown, 16 Ib., 330.) II. As to jurisdiction, the attachment issued out of the Supreme Court, and that court has general jurisdiction; and as to whether the facts showed a case for attachment, it has been decided “ that an attachment under the Code is an order issued as a judicial determination from the facts, that the case is one in which an attachment should be granted.” (Cenin a. Tompkins, 12 Barb., 287.) III. The parties to the undertaking are precluded thereby as to these questions of jurisdiction or fact. They have made their undertaking, and limited the same to three points. 1. As to whether judgment has been recovered; and it is alleged that the same was duly entered and the judgment and its docket are set up. 2. Whether it is unpaid, and that is alleged. 3. Whether there has been a demand, and that is alleged. (Loomis a. Brown, supra; Haggart a. Morgan, 1 Seld., 428; The People a. Falconer, 2 Sand., 81, and cases there cited.) IY. Section 161 is not applicable here. The judgment was not that of a court or officer of special jurisdiction. The words “ duly” or “ in pursuance of statute,” may be used where provided for by statute; but they add nothing elsewhere in pleading. They were not facts. (Shaw a. Tobias, 3 Comst., 188.) Crowell a. Churoh.—Supreme Court, First District; Special Term, April, 1858. This was an action brought under an order of the court, by the plaintiff, as receiver of the property of N. Van Brunt, against the defendant as administratrix, to recover the sum of $1330.88, for professional services rendered by said Van Brunt as attorney to the defendant’s intestate. The complaint set out the appointment and authority of the receiver in the premises as follows: “ The complaint of the above-named plaintiff shows to this court that by an order of the Supreme Court of the State of New York for the Second Judicial District, dated the 19th “ day of November, 1855, and entered in the county of Kings with the clerk of said court on supplementary procedings after execution unsatisfied on a certain judgment in said court obtained by Albert N. Van Brunt, plaintiff, against Nicholas Van Brunt, defendant; he was duly appointed receiver of the property and effects of Nicholas Van Brunt, and has duly entered into the duties of his said office, and brings this action under an order of the court.” To which complaint the defendant demurred, and for ground of her demurrer states— “ That it appears by the face of said complaint that the plaintiff has not legal capacity to sue.” Whereupon the plaintiff moved for judgment on account of frivolousness of said demurrer. Judah & Dickenson for the motion. J. Winslow, opposed, urged among other'grounds in support of the demurrer, that it did not appear in the complaint that the plaintiff was ever appointed receiver by any competent or lawful authority, nor by any valid order, and cited Webber a. Hobbie, 13 How. P. 383; wherein it is held that the authority to appoint a receiver in supplementary proceedings is “conferred not upon the Supreme Court, but upon the judges, as separate judicial officers.” Also, the cases of Gillet a. Fairchild, 4 Den., 80; White a. Joy, 3 Kern., 83, and cases there cited. The motion was argued before Mr. Justice Davies, who, after consideration, made an order denying the motion for judgment with $10 costs to defendant, with leave to the plaintiff to amend. Stewart a. Beebe.—Supreme Court, First District'; Special Term., June, 1868. This was an action by a receiver of the Bowery Bank, described in the complaint as duly appointed by an order of the Supreme Court. The defendant demurred,first, on the ground that the plaintiff had no legal capacity to sue, because the appointment of receiver must be made by a judge out of court, and not the court itself; and, second, that the complaint did not state the facts necessary to show that the order appointing the receiver was such as were required by the statute. Held., 1. That there is nothing to prevent the order for the appointment of receiver from being entered by the justice making it at any term of the court as other business. 2. That the complaint showing the plaintiff to be receiver of the bank appointed by the Supreme Court, by an order made upon a day named, upon filing security, and that such security had been filed, sufficiently showed the mode of his appointment. Enough was so stated to enable the defendant to take issue upon the legality of his appointment, if he please. Judgment for plaintiff on demurrer, with leave to defendants to withdraw demurrer and answer on payment of costs. [MAJORITY — By the Court.—Emott, J.] By the Court.—Emott, J. —An attachment in an action in this court, is not process by which a suit is commenced, but merely a provisional remedy. In this respect it is like an injunction. It has, therefore, been held that the statements in the affidavits on which an attachment is issued, are not jurisdictional facts; that the attachment is not void if they are insufficient, and that any defects in the affidavits may be supplied on a motion to set aside the attachment. The jurisdiction is conferred by the commencement of the suit; all afterwards is a question of regularity, or of the discreet exercise of power. In pleading an attachment, therefore, it is not necessary to show its regularity in order to show jurisdiction in the officer issuing it, and jurisdiction is all that need be pleaded. Again: the attachment is an order of a judge acting as an officer of a court of general jurisdiction, and made under the jurisdiction of the court acquired by the commencement of a suit. Nothing but the commencement of the suit was needed to confer the jurisdiction, and as the suit in this case was in a court of general jurisdiction, it is - unnecessary even to allege this. At all events, it is clear that as the jurisdiction of the officer to issue the attachment did not depend upon the truth or sufficiency of the facts - upon which the attachment was granted, but upon the jurisdiction of the court in which the suit was brought and the order made, it is enough to allege the pend-ency of such a suit. If it were otherwise, as the question of jurisdiction is certainly an issuable question, no allegation is necessary in a pleading which is not material and traversable. (Ensign a. Sherman, 14 How. P. R., 439.) Upon a traverse by the defendant of such an allegation as his demurrer calls for, then the sufficiency and truth of all the statements on which the attachment was allowed could be inquired into in this collateral action. That is, in an action on an attachment bond, the jurisdiction of the officer who granted the attachment must be stated and shown by pleading and proving the correctness of his decision in granting it. Such a rule of law or pleading would be intolerable. The judgment of the City Court is correct and should be affirmed.