Carey v. Sugar Curtis Circulation Company v. Sugar, Nos. 74-858

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM
Citation96 S.Ct. 1208,425 U.S. 73,47 L.Ed.2d 587
PartiesHugh L. CAREY, Governor of the State of New York, et al., Appellants, v. Bert Randolph SUGAR and Wrestling Revue, Inc. CURTIS CIRCULATION COMPANY and Continental Casualty Company, Appellants, v. Bert Randolph SUGAR and Wrestling Revue, Inc
Docket Number74-859,Nos. 74-858
Decision Date24 March 1976

425 U.S. 73
96 S.Ct. 1208
47 L.Ed.2d 587
Hugh L. CAREY, Governor of the State of New York, et al., Appellants,

v.

Bert Randolph SUGAR and Wrestling Revue, Inc. CURTIS CIRCULATION COMPANY and Continental Casualty Company, Appellants, v. Bert Randolph SUGAR and Wrestling Revue, Inc.

Nos. 74-858, 74-859.
March 24, 1976.

PER CURIAM.

This is an appeal from the judgment of a three-judge federal court declaring unconstitutional and enjoining

Page 74

the enforcement of certain statutes of the State of New York which provide for prejudgment attachment of a defendant's assets. On April 13, 1973, appellant Curtis Circulation Co. (Curtis) filed a suit against appellees Sugar and Wrestling Revue, Inc. (Wrestling), and Champion Sports Publications, Inc. (Champion), in a New York state court. The complaint alleged that Curtis had advanced over $100,000 of which $28,588.08 remained unpaid to Champion under a contract with Champion pursuant to which Champion had agreed to permit Curtis to market certain identified sports magazines. It further alleged that Sugar, who owned and operated Champion, had caused title to the magazines to be transferred to Wrestling, another company owned and operated by Sugar, and had caused Wrestling to transfer the magazines to National Sports Publishing Corp. (National), a corporation not controlled by Sugar, for sale to the public. The consequence was that Champion had been stripped of its assets and that the magazines out of the sales of which Curtis was to recoup its advance to Champion had been sold instead by National. The complaint, containing several counts alleging fraud on the part of each defendant, sought a judgment for the $28,588.08 of Curtis' advances which remained unrepaid.

At the same time, Curtis sought to attach the debt owed by National to Wrestling for the magazines which National had sold and for which it had not yet paid Wrestling. New York Civil Practice Laws and Rules (CPLR) § 6201 (Supp. 1975-1976) 1 provides for attach-

Page 75

ment on various grounds. The order of attachment may be granted in favor of a plaintiff by a judge, upon Ex parte motion at any time before judgment, § 6211; and must be supported "by affidavit and such other written evidence as may be submitted, (showing) that there is a cause of action and the one or more grounds for attachment . . . that exist and the amount demanded from the defendant above all counterclaims known to the plaintiff." § 6212(a). In addition, the plaintiff will be ordered by the judge to give an undertaking in an amount fixed by the court out of which the defendant will be paid legal costs and damages resulting from the attachment if the defendant prevails in the underlying lawsuit. § 6212(b).

Pursuant to these procedures, Curtis filed a detailed affidavit alleging that it had a cause of action against appellees and Champion for fraud justifying a recovery of $28,588.08, and seeking an order of attachment under CPLR §§ 6201(4), (5), and (8) (Supp. 1975-1976).

On April 13, 1973, New York Supreme Court Justice Fine granted the motion conditioned on Curtis' providing a $10,000 undertaking, $8,570 of which was for the purpose of holding the defendants harmless should they prevail in the underlying suit. The undertaking was provided by Curtis and the order of attachment issued. The sheriff then levied on the debt owed by National to Wrestling, and money in the total amount of $24,324.17

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was paid to the sheriff by National in April and May 1973, and in April, June, and July 1974.

Under CPLR, a defendant may discharge an attachment by giving an undertaking in an amount equal to the value of the property attached, § 6222, or by successfully moving to vacate the attachment under § 6223. That section provides:

"Prior to the application of property or debt to the satisfaction of a judgment, the defendant, the garnishee or any person having an interest in the property or debt may move, on notice to each party and the sheriff, for an order vacating or modifying the order of attachment. Upon the motion, the court shall give the plaintiff a reasonable opportunity to correct any defect. If, after the defendant has appeared in the action, the court determines that the attachment is unnecessary to the security...

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77 practice notes
  • Wynn v. Scott, No. 75 C 3975 and 75 C 3981.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 12, 1978
    ...interpretation of a state law doctrine could modify or avoid the federal constitutional question presented.5 See also Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) (federal court should abstain from deciding constitutionality of a state statute while state court interpre......
  • Kohler v. Hirst, Civ. A. No. 78-243-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 5, 1978
    ...cases have some relevance here. 5 This situation justifies abstention in cases brought under 42 U.S.C. § 1983. See, e. g., Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana State Employees' Ass'n, Inc., 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975); Ha......
  • Stypmann v. City and County of San Francisco, No. 74-1844
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 21, 1977
    ...v. Kennedy, 416 U.S. 134, 170, 178, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White and Powell, JJ., concurring). See also Carey v. Sugar, 425 U.S. 73, 77-78, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana State Employees Ass'n, 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 21 The ordinanc......
  • McCahey v. L.P. Investors, No. 1126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 30, 1985
    ...days to delay a ruling. Barchi is therefore not controlling. The present case is controlled, or at least informed, by Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) (per curiam ). That case involved an attack on the constitutionality of New York's pre-judgment attachment ......
  • Request a trial to view additional results
77 cases
  • Wynn v. Scott, No. 75 C 3975 and 75 C 3981.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 12, 1978
    ...interpretation of a state law doctrine could modify or avoid the federal constitutional question presented.5 See also Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) (federal court should abstain from deciding constitutionality of a state statute while state court interpre......
  • Kohler v. Hirst, Civ. A. No. 78-243-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 5, 1978
    ...cases have some relevance here. 5 This situation justifies abstention in cases brought under 42 U.S.C. § 1983. See, e. g., Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana State Employees' Ass'n, Inc., 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975); Ha......
  • Stypmann v. City and County of San Francisco, No. 74-1844
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 21, 1977
    ...v. Kennedy, 416 U.S. 134, 170, 178, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White and Powell, JJ., concurring). See also Carey v. Sugar, 425 U.S. 73, 77-78, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana State Employees Ass'n, 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 21 The ordinanc......
  • McCahey v. L.P. Investors, No. 1126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 30, 1985
    ...days to delay a ruling. Barchi is therefore not controlling. The present case is controlled, or at least informed, by Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) (per curiam ). That case involved an attack on the constitutionality of New York's pre-judgment attachment ......
  • Request a trial to view additional results

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