115 N.Y. 251, Warner v. Fourth Nat. Bank

Citation:115 N.Y. 251
Party Name:HENRY WARNER, as Assignee, etc., Respondent, v. THE FOURTH NATIONAL BANK et al., Appellants.
Case Date:October 08, 1889
Court:New York Court of Appeals
 
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Page 251

115 N.Y. 251

HENRY WARNER, as Assignee, etc., Respondent,

v.

THE FOURTH NATIONAL BANK et al., Appellants.

New York Court of Appeal

October 8, 1889

Argued June 3, 1889.

Page 252

COUNSEL

David Willcox for appellants. An attachment reaches and becomes a lien upon such debts as, at the time of the levy, belong to the debtor by a legal title and for the recovery of which he could maintain an action at law. (Thurber v. Blanck, 50 N.Y. 80; Castle v. Lewis, 78 id. 137; Anthony v. Wood, 96 id. 180; Hankinson v. Page, 31 F. 184.) Negotiable instruments transferred and delivered to a creditor of the holder as collateral security for a debt are pledged, not mortgaged. (McLean v. Walker, 10 Johns. 471; Garlick v. James, 12 id. 149; White v. Platt, 5 Denio, 269; Wheeler v. Newbould, 16 N.Y. 392; Lewis v. Graham, 4 Abb. Pr. 106.) Where property is pledged the title remains in the pledgor. (Bryan v. Baldwin, 52 N.Y. 232; Lawrence v. Maxwell, 53 id. 19; Stowell v. Otis, 71 id. 36, 39; Brownell v. Hawkins, 4 Barb. 493; Patterson v. Perry, 10 Abb. Pr. 82, 92;

Page 253

Farwell v. I. & T. Bk., 90 N.Y. 483, 488, 490; Wheeler v. Newbould, 16 id. 398; Cont. Bk. v. Townsend, 87 id. 8; Boyd v. Cummings, 17 id. 101; Grocers' Bk. v. Penfield, 69 id. 502; Bank v. Vanderhorst, 32 id. 559; Wilson v. Little, 2 id. 443, 447.)Instruments for the payment of money are subject to attachment, and a levy of an attachment thereon is deemed a levy upon and seizure of the debt represented thereby. (Code, § 648; McGinn v. Ross, 11 Abb. Pr. [N. S.] 20; 33 Supr. 346; Rushton v. Ross, 64 Pa. St. 43.) The Code provides for the attachment of choses in action other than instruments for the payment of money. (Code, § § 684, 649.) As this right to receive the surplus collected was a chose in action of a legal nature it came within this provision of the Code. (Dunlop v. Patterson Ins. Co., 74 N.Y. 145, 148, 149; First Nat. Bk. v. Dunn, 97 id. 149; R. L. Works v. Kelley, 88 id. 234; Patterson v. Perry, 5 Bosw. 518; 10 Abb. Pr. 82; Waverly Coal Co. v. McKennan, 3 East. Rep. 404; Brownell v. Carnley, 3 Duer, 9; Kuhlman v. Orser, 5 id. 242; Pierce v. Carleton, 12 Ill. 358; Lightner v. Steinagel, 33 id. 510; Kneeland on Attachments, § 316.) When the negotiable instruments are already pledged for a debt they come within the description of personal property incapable of manual delivery. (Code, § 649, subd. 3; Clarke v. Goodridge, 41 N.Y. 210, 214; Brownell v. Carnley, 3 Duer, 9.) In any event, the Penn Bank had a contract right to receive from the American Exchange Bank any surplus collected. This is the right which is reached and held by an attachment against the pledgor. (Dunlop v. Patterson Ins. Co., 74 N.Y. 145; Brownell v. Carnley, 3 Duer, 9; Patterson v. Perry, 5 Bosw. 578; 10 Abb. Pr. 82, 96.)

James Watson for respondents. If, at the time the sheriff left a copy of the warrant with the American Exchange National Bank, the legal title to the notes and bills was in the Penn Bank, no lien was acquired, because he did not take the same into his 'actual custody.' (Code Civ. Pro. §§ 648...

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