Glassman v. Hyder
| Decision Date | 27 October 1966 |
| Parties | Charles S. GLASSMAN, Plaintiff-Appellant, v. Donald W. HYDER, Richard E. Hyder and Josephine Hyder, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Term |
Benedict Ginsberg, New York City, for appellant.
Vincenti & Schickler, New York City, Arnold S. Schickler, New York City, of counsel, for respondents.
Before STREIT, Justice Presiding, and GOLD and HOFSTADTER, JJ.
CPLR § 6202 subjects to attachment any debt against which a money judgment may be enforced as provided in § 5201. CPLR § 5201 permits enforcement of a money judgment against any debt which is past due or which is yet to become due, certainly or upon demand of the judgment debtor. CPLR § 5201 must, however, be read together with CPLR § 5226, which permits an instalment payment order and CPLR § 5231, which permits an execution against income; under these latter sections a money judgment may be enforced against income not yet due and not certain to become due. In our opinion the legislative intent was to subject the same types of property and debts to both attachment and enforcement of money judgments. (3 New York Report of Advisory Committee on Practice & Procedure, (1959), p. 101.) Prospective earnings and other future accruing income are subject to an order of attachment, and a levy thereunder operates as a continuing levy until an amount sufficient to satisfy plaintiff's demand has been accumulated. The rentals accruing under the long term lease between defendants and the tenant served with the order of attachment were equally subject to levy thereunder, although no rent was yet due when the levy was made. There is no true distinction between future earnings and other future accruing income and rentals under an existing lease yet to become due and the justification for a levy upon the former applies at least as much to the latter (see Morris Plan Industrial Bank of New York v. Gunning, 295 N.Y. 324, 67 N.E.2d 510). It was, therefore, error to declare the levy invalid and to vacate the order of attachment.
The court correctly ruled that personal jurisdiction of the nonresident defendants had not been acquired pursuant to CPLR § 302(a)(1) (M. Katz & Son Billiard Products, Inc. v. Correale & Sons, 26 A.D.2d 52, 270 N.Y.S.2d 672; Kramer v. Vogl, 17 N.Y.2d 27, 267 N.Y.S.2d 900, 215 N.E.2d 159). Since, however, by virtue of the reinstatement of the order of attachment the action must continue, the...
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Glassman v. Hyder
...there was no jurisdiction (51 Misc.2d 535, 273 N.Y.S.2d 385); the Appellate Term reinstated the attachment and the complaint (52 Misc.2d 618, 276 N.Y.S.2d 453); and the Appellate Division, agreeing with the Civil Court, vacated the attachment and dismissed the complaint (28 A.D.2d 974, 283 ......
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...of the judgment debtor * * *.' Although I agree with the reasoning of the Appellate Term of the First Department in Glassman v. Hyder, 52 Misc.2d 618, 276 N.Y.S.2d 453 and the opinion of Mr. Justice Steuer in dissent to the Per Curiam of the Appellate Division, First Department, reversing t......
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