Warner v. Fourth Nat. Bank
| Citation | 115 N.Y. 251,22 N.E. 172 |
| Parties | WARNER v. FOURTH NAT. BANK et al. |
| Decision Date | 08 October 1889 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, first department.
Action by Henry Warner, as assignee of the Penn Bank, against the Fourth National Bank of the city of New York and Alexander V. Davidson, late sheriff of the city and county of New York, to recover the proceeds of certain negotiable notes. The judgment of the special term in favor of defendants was reversed by the general term, and defendants appeal. Code Civil Proc. N. Y. § 649, provides (subdivision 2) that an attachment may be levied on ‘personal property capable of manual delivery, including a bond, promissory note, or other instrument for the payment of money by taking the same, into the sheriff's actual custody;’ (subdivision 3) ‘upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same.’
David Willcox, for appellants.
James Watson, for respondent.
The question to which our attention is directed by this appeal is an to what constitutes an effectual levy under a warrant of attachment upon personal property, consisting of promissory notes and other similar securities, negotiable in their nature, and which are held under pledge for the security of a debt. Here the appellant, a New York bank, having a claim against the Penn Bank, a Pennsylvania corporation, brings an action upon it, and attaches, in limine, property of the Penn Bank, in the possession of the American Exchange Bank in New York. To secure repayment to the latter bank of a loan of money made by it, the Penn Bank had deposited with it commercial paper to an amount in excess of the amount of the loan. Upon perfecting judgment in its action the Fourth National Bank endeavored to collect it by execution out of the attached property. But meanwhile the Penn Bank has failed, and made an assignment to this respondent for the benefit of creditors; and he claims that the attachment was ineffectual to confer any rights or to vest any interest in the pledged property. After the American Exchange Bank had collected the securities pledged with it, and had made application of the proceeds to the satisfaction of its loan, a surplus remained in its possession, and it is that surplus which is sought to be recovered in the present action by the assignee of the Penn Bank. The general term, reversing the judgment of the special term, have sustained his right to recover the surplus proceeds arising from the collection of the pledged property, and their decision is based upon the proposition that, as the sheriff did not take into his actual custody the property attached, no effectual levy was made, and consequently no lien was acquired upon it. They seek to justify the proposition by reference to the provisions of the Code of Civil Procedure, prescribing the mode of levy under a warrant of attachment. Those provisions. (see sections 648-650,) we think, have been too literally construed, and the able and careful judge who spoke for the general term erred in supposing that no other construction is possible than that given. It undoubtedly is intended by the Code provisions that, where the levy is upon personal property belonging to the defendant, which is capable of manual delivery, the sheriff must take it into his actual custody, in order to perfect the levy. As the general term opinion concedes, the case of Anthony v. Wood, 96 N. Y. 180, was one where the property attached was the defendant's absolutely, and there was no reason why the explicit requirement of the Code should not have been met by the sheriff's taking the bond and mortgage under his levy. If in the present case the securities attached were the absolute property of the Penn Bank, there could be no question but that the levy was ineffectual; but such was not the fact. The American...
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...realized upon a sale, or to return any of the stock not sold for payment of the debt. Wheeler v. Newbould, 16 N. Y. 392;Warner v. Bank, 115 N. Y. 251, 22 N. E. 172. It is true that the corporate property represented by the shares of stock was not within this jurisdiction; but how is that a ......
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...we have been able to find in the State of New York, which appears to be one almost exactly similar to the one at bar, is that of Warner v. Bank, 115 N.Y. 251. such property as these county warrants in question are attachable, we cite the court to the following cases: Waples on Attachment, 2......
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