Glassman v. Hyder

• Decision Date: 01 June 1966
• Citation: 51 Misc.2d 535,273 N.Y.S.2d 385
• Parties: Charles S. GLASSMAN, Plaintiff, v. Donald W. HYDER et al., Defendants.
• Court: New York City Court

Page 385

273 N.Y.S.2d 385

51 Misc.2d 535

Charles S. GLASSMAN, Plaintiff, v. Donald W. HYDER et al., Defendants.

Civil Court of the City of New York, New York County.

June 1, 1966.

Benedict Ginsberg, New York City, for plaintiff.

Vincenti & Schickler, New York City (Arnold S. Schickler, New York City, of counsel), for defendant.

WILLIAM S. SHEA, Judge.

Defendants move to vacate the order of attachment and to dismiss the complaint.

The first issue herein is whether this court has jurisdiction pursuant to CPLR 314(3). That issue depends upon whether the order of attachment validly attached to rents not yet due under a lease.

CPLR 6202 provides that any debt or property against which a money judgment may be enforced under CPLR 5201 is attachable. CPLR 5201 provides that a money judgment may be enforced against any debt which is yet to become due, certainly or upon demand of the judgment debtor.

It is well settled that an indebtedness is not attachable unless it is absolutely payable at present or in the future and not dependable upon any contingency (Sheehy v. Madison Square Garden Corp., 266 N.Y. 44, 47, 193 N.E. 633; Herrmann & Grace v. City of N.Y., 130 App.Div. 531, 535, 114 N.Y.S. 1107, 1110, aff'd 199 N.Y. 600, 93 N.E. 376; Dutch-Amer. Mercantile Corp. v. Safticraft Corp., 17 A.D.2d 421, 423, 234 N.Y.S.2d 683, 686; Frederick v. Chicago Bearing Metal Co., 221 App.Div. 588, 224 N.Y.S. 629).

It is not disputed that the levy on the order of attachment was made on December 21, 1965 when the garnishee owed no rent to the defendants since the rent for December, 1965 was paid on December 3, 1965. Therefore, the order of attachment and the levy thereunder was not valid since at the time of the levy there was no debt, money or property right actually in existence to which the warrant could attach (see Sheehy v. Madison Square Garden Corp., supra).

The plaintiff has failed to submit any case showing that an order of attachment may be levied against rent to be due in the future on real property located outside of N.Y., to wit, New Mexico.

Plaintiff's argument that the obligation to pay rent would continue until the expiration of the 20 year term and that the method and time of payment were deferred until the first of every month is without merit. The lease agreement between defendants and the garnishee, Fireman's Fund Ins. Co., attached to the moving papers is dependent upon many conditions under its terms. The court is unable to state that the lease agreement herein is not dependable upon any contingency nor has the court found any case which holds that rents to be paid in the future are attachable.

Therefore, this court has no jurisdiction pursuant to CPLR 314(3), and the order of attachment must be vacated.

The next issue that arises is whether this court has jurisdiction over the defendants pursuant to Sec. 404(a)(1), Civil Court Act.

In the affidavit by plaintiff, he alleges that he is a real estate broker licensed by the State of N.Y. Plaintiff claims that his telephone conversations from N.Y.C. to defendants in New Mexico constitute a basis for jurisdiction. Furthermore, he claims that he was hired as a broker agent for the defendants and that he secured a N.Y.C. purchaser for the real property located in New Mexico.

In A. Millner Co. v. Noudar, Lda., 24 A.D.2d 326, at pp. 328 to 329, 266 N.Y.S.2d 289, at pp. 292 to 293, cited by plaintiff's counsel at the argument of this motion, the court stated the following:

'The question presented is whether the defendant transacted some business in New York with respect to the contract out of which this action arises. If the plaintiff were an employee of or an agent acting exclusively for the defendant, plaintiff's acts, in and of them...