Courtney v. Eighth Ward Bank of Brooklyn

• Decision Date: 11 January 1898
• Citation: 154 N.Y. 688,49 N.E. 54
• Parties: COURTNEY, Sheriff, et al. v. EIGHTH WARD BANK OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 688

49 N.E. 54

COURTNEY, Sheriff, et al.

v.EIGHTH WARD BANK OF BROOKLYN.

Court of Appeals of New York.

Jan. 11, 1898.

Appeal from city court of Brooklyn, general term.

Action by John Courtney, sheriff, and others, against the Eighth Ward Bank of Brooklyn. From an order of the general term (35 N. Y. Supp. 1049) reversing a judgment dismissing the complaint, entered on the report of a referee, and ordering a new trial, defendant appeals. Reversed.Tunis G. Bergen, for appellant.

Henry B. Closson, for respondents.

JAIGHT, J.

This action was brought to recover the amount that the Cowles Engineering Company of New Jersey had on deposit with the defendant. On the 25th day of August, 1893, an attachment was issued in an action brought by Edward F. Rice against the Cowles Engineering Company, which was delivered to the sheriff of Kings county, with instructions to levy upon the balance owing that company by the defendant. On the 26th day of August, the sheriff, or his deputy, went to the defendant's bank, and delivered to the teller a paper purporting to be a copy of the warrant of attachment. It was folded in the usual form, and had indorsed upon the back the title of the action, and underneath the title the words ‘Warrant of Attachment.’ Then followed the name of the plaintiffs' attorney, with his address, and after that the words ‘A Copy.’ Upon the reverse fold of the paper was indorsed the following: ‘To the Eighth Ward Bank: You are hereby notified that the deposit of the Cowles Engineering Company in your bank, and the indebtedness owing it by your bank, is hereby attached, by virtue of the inclosed warrant. Dated August 26, '93. [Signed] John Courtney, Sheriff. Wm. J. Cunningham, Deputy.’ On the 12th day of September the cashier of the defendant certified that on the 26th day of August it was indebted to the Cowles Engineering Company in the sum of $1,485.46. October 6th the attachment became merged in an execution issued upon the judgment, and on that day the sheriff demanded the payment to him by the bank of the money attached. This was refused, and thereupon this action was brought. The referee dismissed the plaintiffs' complaint, holding that the attachment was not properly levied. The general term reversed the judgment upon questions of law, and ordered a new trial.

The Code of Civil Procedure (section 649, subd. 3) provides that property incapable of manual delivery may be attached ‘by leaving a certified copy of the warrant and a notice showing the property attached with the person holding the same.’ In the case of Penoyar v. Kelsey, 150 N. Y. 77, 44 N. E. 788, this court was called upon to construe section 636 of the Code; and it was then held that, owing to the harsh nature of the remedy by attachment given by this section, it should be construed, in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be applied. This...