Emil Weil and Others, Respondents, v. August F. Gallun and Others, Appellants

Emil Weil and Others, Respondents, v. August F. Gallun and Others, Appellants. Attachment—question of indebtedness of persons served, not determined on a motion—a failure to serve a certified copy is a jurisdictional defect — not an irregularity, which must be specified in a notice of motion. Where attachments issued in an action have been served upon various persons who are claimed to be indebted to the defendants in the attachment; the question whether such persons are actually so indebted cannot be determined upon a motion made to set aside the service of such attachments. The failure, when making a levy under a warrant of attachment, to serve .a certified copy of the attachment as required by the Code of Civil Procedure (§ 649) is a jurisdictional defect which renders the levy ineffectual. Such a defect is not an irregularity within the meaning of rule 37 of the General Rules of Practice, which requires that, in the notice of motion to set aside for irregularity, the irregularity shall be specified. The irregularities mentioned in rule 37 relate to irregularities of practice in the conduct of litigations. Appeal by the defendants, August E. Gallun and others, from an •order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of July, 1902, denying the defendants’ motion to set .aside levies under warrants of attachment. Francis C. Huntington, for the appellants. Arnold Charles Weil, for the respondents. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: Attachments having been issued in this action, they were served upon various persons claimed to have been indebted to the defendants in the attachment, namely, upon one Lowenstein; one Edwards,, one Hollander, and one ¡Nettleton. It is sought to set aside the service upon Lowenstein, Edwards and Hollander upon the ground that there was no indebtedness existing from them to the defendants in the attachment. We do not see how the question of indebtedness by the moving-parties to the defendants in the attachment can be determined upon this motion. If they are not indebted, the attachment does them no harm ; and, if they are indebted, then the plaintiffs are entitled to the benefit of the levy. It is insisted that, so far as Hollander'is concerned, he is the president of a foreign corporation which was indebted to the defendants . and that such indebtedness cannot be reached by the attachment. So far as the papers disclose, the attachment does not seem to liavebeen served upon him as president of the corporation. If it had been, it might be that the levy could be set aside precisely the same as the service of the summons upon foreign corporations would be set aside upon the proper motion where the service is made upon a person not designated by the Code of Civil Procedure. ' In the case at bar the service seems to have been upon Hollander personally,, and, as already stated, the question whether he is indebted to the defendants or not cannot be determined upon such a motion as-this. In respect to the levy upon N ettleton another question arises. It appears that no certified copy of the attachment was served upon him as required by the Code of Civil Procedure '(§ 649), b.ut that a paper purporting to be a copy of the attachment was served. This was clearly irregular and the levy was, therefore, ineffectual. This was not an irregularity coming within rule 37 of the General Rules of Practice which requires that, in the notice of motion to-set aside for irregularity, such irregularity shall be specified. It was a question of jurisdiction which was not. acquired by the improper service of the paper. The irregularities mentioned in rule 37 seem to relate to irregularities of practice in the conduct of litigations. We think, therefore, that the order should be affirmed so far as to deny the motion to set aside the levies as to Lowenstein, Edwards and Hollander, and that the order should be reversed as to Nettle-ton and the motion to vacate the levy granted, without costs to either party. O’Brien, McLaughlin and Laughlin, Jj., concurred. Order affirmed so far as to deny motion to set aside levies as to Lowenstein, Edwards and Hollander, and reversed as to Nettle-ton, and motion to vacate levy granted, without costs to either party.