Hayden v. Nat'l Bank of State York

• Decision Date: 01 December 1891
• Citation: 29 N.E. 143,130 N.Y. 146
• Parties: HAYDEN et al. v. NATIONAL BANK OF THE STATE OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 146

29 N.E. 143

HAYDEN et al.

v.NATIONAL BANK OF THE STATE OF NEW YORK.

Court of Appeals of New York, Second Division.

Dec. 1, 1891.

Appeal from supreme court, general term, first department. Affirmed.

Action by William B. Hayden and others against the National Bank of the State of New York to recover money claimed to have been attached in plaintiffs' hands. The order dismissing the complaint was affirmed by the general term. Plaintiffs appeal.

The other facts fully appear in the following statement by BROWN, J.:

The plaintiffs Hayden and Allen were creditors of the firm of G. H. Loker & Bros., residents of and doing business at St. Louis, Mo.; and on the 9th day of October, 1878, commenced an action against said firm, and obtained therein an attachment against their property, which attachment was on the following day delivered to the plaintiff Reilly, then the sheriff of the city of New York. The Christian names of the members of said firm were unknown to the plaintiffs, and in the summons and writ of attachment they were described as ‘G. H. Loker and _____ Loker.’ The writ of attachment was in the usual form, and commanded the sheriff to attach so much of the property which the said G. H. Loker and _____ Loker had within his county as would satisfy the plaintiffs' demand. The said firm had an account with defendant under the name of G. H. Loker & Bro., and on the 10th day of October the sheriff attempted to serve said attachment upon the defendant by delivering to its cashier a certified copy of the warrant, upon which was indorsed a notice to the effect that by it the sheriff was commanded to attach all the property of the defendant G. H. Loker within his county; and that, having been informed that the said bank had in its possession certain moneys belonging to said defendant, and was indebted to him, he particularly attached and required to be delivered and paid over to him the said money and any property of said defendant in possession or under control of said bank. Having read over the attachment and notice, the cashier informed the sheriff that they had no account against G. H. Loker and _____ Loker, but that they had an account against G. H. Loker & Bro., and that they would send a certificate to the sheriff that afternoon. At that time the bank was indebted to G. H. Loker & Bro. in a sum upwards of $2,000, and this amount was subsequently applied by the bank to the payment of a note upon which said Loker & Bro. were liable, and which matured on October 12th. This action was brought to recover the amount of the bank's indebtedness to Loker & Bro. After proof of the foregoing facts the trial court dismissed the complaint, and, the judgment entered upon such dismissal having been affirmed at the general term, the plaintiffs appealed to this court.

POTTER, J., dissenting.

Geo. A. Strong, for appellants.

Joseph Larocque, for respondent.

BROWN, J., ( after stating the facts.)

The right of the plaintiffs to recover in this action depended upon the question whether the proceedings taken by them against the firm of G. H. Loker & Bro. were effectual to attach the funds of that firm on deposit with the defendant. When the defendants in an action are nonresidents of the state, as in the present case, they may have no actual notice of an attachment proceeding, and their property is taken without an opportunity for them to be heard. Under such circumstances, it would seem that there could be no question but that the attaching creditor should substantially comply with the statute regulating such proceedings. It can be of no consequence what knowledge the holder of the attached property may have as to the particular...