138 N.Y. 209, Douglass v. Phoenix Ins. Co. of Brooklyn

Citation:138 N.Y. 209
Party Name:HIRAM A. DOUGLASS, Respondent, v. THE PHENIX INSURANCE COMPANY of Brooklyn, N.Y. Appellant.
Case Date:April 25, 1893
Court:New York Court of Appeals

Page 209

138 N.Y. 209

HIRAM A. DOUGLASS, Respondent,

v.

THE PHENIX INSURANCE COMPANY of Brooklyn, N.Y. Appellant.

New York Court of Appeal

April 25, 1893

Argued April 13, 1893.

Page 210

COUNSEL

G. A. Seixas for appellant. Upon the principle that a debtor should not be compelled to pay his debt twice it has long been the settled law of this state that a foreign attachment of the debt sued for is pleadable in abatement of an action brought in this state for the recovery of such debt by the creditor, as against whose title thereto such debt has been attached by the foreign attachment. It is not necessary that the debt or any part thereof shall have been in fact paid under such attachment or in any other way. It is enough that the foreign attachment is still pending. (Drake on Attach. [ 7th ed.] § § 478, 617, 700; Donovan v. Hunt, 7 Abb. Pr. 29; Embury v. Haima, 5 Johns. 101; F. N. Bank v. Burch, 80 Mich. 242; Mahr v. N. U. F. I. Co., 127 N.Y. 452; Gould v. C., B. & Q. R. R. Co., 15 N.Y.S. 895.) The court

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at Special Term, erred in saying that 'upon the face of this statement it is clear that nothing was due or owing at the time of such service from defendant to plaintiff, nor was there, at such time, any claim liquidated and adjusted, and under no general public law could any such attachment attach anything.' As a fact, the answer admits and alleges that there was a liquidated and adjusted claim and that the attachment was levied on it. By the general public law a debt arising upon contract, though not yet due and payable and though not liquidated, is attachable. (Drake on Attach. [ 7th ed.] § § 541, 555, 556, 557, 558, 559; Clapp v. H. Bank, 1 Allen, 394; Nichols v. Schofield, 5 R. I. 123; Ware v. Gowen, 65 Me. 534; Warner v. F. N. Bank, 115 N.Y. 251.)The answer clearly sets up a good defense within the doctrine we contend for. It must be borne in mind that the question whether the local law of Massachusetts makes this debt subject to attachment in that state, is one of fact and not of law. The demurrer raises only questions of law and admits the facts to be as pleaded in the answer. An issue or allegation as to the law of another state or of a foreign country is an issue or allegation of fact and not of law. ( Western v. G. M. I. Co., 12 N.Y. 258, 263, 264.) There can be no valid contention that the defendant herein is not subject to the jurisdiction of the Massachusetts court. In so far as the question is what is the local law of Massachusetts on the subject, it is as before stated one of fact, and the averments as to that in the answer are admitted by the demurrer and cannot be denied or disputed on the argument of this demurrer. ( Teel v. Yost, 128 N.Y. 387, 397; Pringle v. Woolworth, 90 id. 502; N. Bank v. Huntington, 129 Mass. 144; Hiller v. B. & M. R. R. Co., 70 N.Y. 223; Gibbs v. Q. Ins. Co., 63 id. 114; L. Ins. Co. v. French, 18 How. [ U. S.] 404; Plimpton v. Bigelow, 93 N.Y. 592.) The seventh, eighth and ninth paragraphs of the answer set forth in full detail the proceedings had and relied on as a defense, and also allege that each of them was duly had. These allegations are more than sufficient in form. The jurisdiction of a court of general jurisdiction, whether a foreign

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or domestic court, is presumed and need not be alleged, nor until impugned by proof, need it be proven. ( Pringle v. Woolworth, 90 N.Y. 502; Foot v. Stevens, 17 Wend. 483; Hatcher v. Rochelean, 18 N.Y. 86; Hutchinson v. Brand, 6 How. Pr. 73; 9 N.Y. 202; Schluter v. B. S. Bank, 117 id. 125; Code Civ. Pro.§ 532; Marie v. Garrison, 83 N.Y. 14; Lorillard v. Clyde, 86 id. 384, 385; Milliken v. W. U. T. Co., 110 id. 403-408; Angell v. Van Schaick, 132 id. 192.)

William P. Cantwell for respondent. No questions, it is believed, will arise upon this appeal except those presented by the demurrer. Having denied a portion of the complaint, the defendant cannot, upon this argument, attack the complaint. In other words, the defendant cannot himself plead and demur to the complaint at the same time. ( Wheeler v. Curtis, 11 Wend. 654; Morey v. Ford, 32 Hun, 446; Baylies' Pleadings & Forms, 287; Valentine v. Lunt, 51 Hun, 544.) An attachment is a proceeding in rem, and not in personam. (1 Wait's Act. & Def. 411.) In order to give an attachment or an action commenced by attachment, in which there is no personal service on the debtor, any force or effect, there must be property found and attached; and then the proceeding operates only as to that property. In other words, if there is no property, there is no attachment and no suit. ( O'Neil v. Nagle, 19 Abb. [ N. C.] 399; Williams v. Ingersoll, 89 N.Y. 523; State Tax, 15 Wall. 300; H. N. Bank v. Lacombe, 84 N.Y. 367; Addison on Cont. § § 238, 241; Osgood v. Maguire, 61 N.Y. 524; Guillander v. Howell, 35 id. 657, 662; H. N. Bank v. King, 10 Abb. [ N. C.] 346; Morrison v. M. L. Ins. Co., 57 Hun, 97; Plimpton v. Bigelow, 93 N.Y. 592; Code Civ. Pro. §§ 641, 644, 647; Willett v. E. Ins. Co., 10 Abb. Pr. 193; Bates v. N. O., etc., R. R. Co., 13 How. 516.) Another action pending in another state is no defense to an action here. ( Cook v. Litchfield, 5 Sandf. 330; Burns v. Miller, 5 Hun, 51; Strong v. Stevens, 4 Duer, 668; Wait's Act. & Def. 504; Hecker v. Mitchell, 5 Abb. Pr. 453; Osgood v. Maguire, 61 Barb. 54;

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King v. Phillips, 8 Bosw. 603; Williams v. Ayrault, 37 Barb. 364; Brown v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; Suley v. Brewer, 1 Daly, 79; L. F. Ins. Co. v. Mesural, 7 Robt. 308; O. C. Bank v. Bonney, 101 N.Y. 173.)It is the settled law of this state that any attempt by attachment or trustee process to deprive a non-resident debtor of his property without service upon him in some form of a notice thereof, is a violation of the fourteenth amendment of the Constitution of the United States, section 1 of which says: 'Nor shall any state deprive any person of life, liberty or property without due process of law.' ( Martin v. C. V. R. R. Co., 50 Hun, 349; Stewart v. Palmer, 74 N.Y. 184; C. L. Ins. Co. v. Palmer, 113 U.S. 576; Davidson v. New Orleans, 96 id. 105.) It is stated in the answer that this debt from the defendant to Douglass has passed into the custody of the law of Massachusetts, which means that Douglass has been deprived of it. Such an allegation is a mere conclusion or inference, and cannot be of any use to the pleader. But passing by that objection we submit that the answer shows nothing of that kind. To effect that object, according to any conceivable theory of this case, the Massachusetts court must have obtained at least complete jurisdiction over the thing attached. (Towle Case, 57 Vt. 622; Martin Case, 50 Hun, 354; Andrews v. Herriott, 4 Cow. 524; Long v. Long, 1 Hill, 597; Cornell v. Barnes, 7 id. 35; 1 Abbott's Forms, 334, 335; 2 id. 334; Roberge v. C. V. R. R. Co., 18 Abb. [ N. C.] 263; Wheeler v. Raymond, 8 Cow. 315; Cook v. Warren, 88 N.Y. 37, 40; Knapp v. City of Brooklyn, 97 id. 520; Wood v. Emory, 105 id. 282; Hemmingway v. Poucher, 98 id. 281; Baylies' Pl. 23; Angell v. Van Schaick, 56 Hun, 247; Allison v. Hart, 56 id. 282; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 337; Sheldon v. Hopkins, 7 Wend. 435; Stiles v. Stewart, 12 id. 473; Cornell v. Barnes, 7 Hill, 35; Lawton v. Erwin, 9 Wend. 233; Mills v. Duryea, 7 Cranch, 481; Moe v. Moe, 2 T. & C. 647; Holmes v. Holmes, 4 Lans. 388; 57 Barb. 305; Todd v. Kerr, 42 id. 317; Kerr v. Kerr, 41 N.Y. 272; McGifferty v. McGifferty,

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31 Barb. 69; Vischer v. Vischer, 12 id. 640; Borden v. Fitch, 15 Johns. 141; People v. Baker, 76 N.Y. 83, 87; Collins v. Collins, 80 id. 7; O'Dea v. O'Dea, 101 id. 23; Jones v. Jones, 108 id. 415-424; De Meli v. De Meli, 120 id. 485; Tattle v. Smith, 24 How. 395; Hobb v. Dunkin, 19 id. 164; Gibbs v. Q. Ins. Co., 63 N.Y. 123; Bates v. N. O., etc., R. R. Co., 13 How. 516, 526, 527; Weber v. Doran, 70 Me. 140; 11 U.S. Dig. [N. S.] 394; Heege v. Frain, 18 Mo.App. 139; 17 U.S. Dig. [ N. S.] 299; Hibbard v. Everett, 65 Iowa, 372; 17 U.S. Dig. [ N. S.] 300; Bucklin v. Powell, 60 N.H. 216; 16 U.S. Dig. [ N. S.] 304; Rinehart v. Hardesty, 17 Nev. 141; 15 U.S. Dig. [ N. S.] 350.) An attachment, trustee process, or by whatever name it may be called, is of course a matter of statute wherever it exists. Hence, it follows that where it becomes essential to allege it as occurring in another state, the precise statute authorizing it must be pleaded, to the end that our court can see whether that court had jurisdiction, and whether the proceedings were valid. Abell v. Douglass, 4 Den. 305; Throop v. Hatch, 3 Abb. Pr. 23; Wright v. Delafield, 23 Barb. 498; White v. Knapp, 47 id. 549; Davis v. Garr, 6 N.Y. 124; Holmes v. Broughton, 10 Wend. 75; Crawford v. Slade, 44 Am. Dec. 464; 1 Abb. Forms, 332.) The courts of this state will not give effect to foreign laws which contravene the spirit of our own, when the rights of our own citizens are concerned. ( Edgerly v. Bush, 81 N.Y. 199; Dike v. E. R. R. Co., 45 id. 118; Martin v. Hill, 12 Barb. 531.) The pretended defense has ceased. Hence, only an abstract question remains. The court does not sit to determine such questions. The appeal should be dismissed. ( People ex rel. v. Grace, 16 N.Y. S. R. 1011; People ex rel. v. Troy, 82 N.Y. 575; 1 Rumsey's Pr. 208; Clark v. Clark, 7 Robt. 276; Smith v. Hart, 11 How. 203, 206.)

ANDREWS, Ch. J.

The defense demurred to is in substance that the debt owing by the Phoenix...

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