McCarthy v. Culkin

• Decision Date: 08 July 1930
• Citation: 172 N.E. 524,254 N.Y. 328
• Parties: McCARTHY v. CULKIN, Sheriff.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 328

172 N.E. 524

McCARTHY

v.CULKIN, Sheriff.

Court of Appeals of New York.

July 8, 1930.

Action by Charles H. McCarthy against Charles W. Culkin, as Sheriff of New York County. From a judgment (228 App. Div. 690,239 N. Y. S. 791), affirming a judgment of Special Term granting defendant's motion for judgment on the pleadings dismissing complaint, plaintiff appeals.

Judgments reversed, and defendant's motion for judgment on the pleadings denied.

Appeal from Supreme Court, Appellate Division, First department.

Borris M. Komar, of New York City, for appellant.

John Caldwell Myers and John F. Keating, both of New York City, for respondent.

LEHMAN, J.

The plaintiff on the 24th day of July, 1928, obtained a judgment for the sum of $26,115.42 against the Banque de Commerce de L'Azoff Don, a banking corporation organized under the laws of Russia and not doing business in the state of New York. In that action a warrant of attachment was issued directed to the defendant, as sheriff of New York county, on April 17, 1928. He served a certified copy of the attachment on the National Bank of Commerce of New York. That bank was indebted to the foreign bank, the defendant in the attachment action, in the sum of $26,615.42. Execution was issued upon the judgment thereafter obtained in the attachment action, and the sheriff collected from the National Bank of Commerce the amount it owed to the foreign bank. He has refused to pay that sum to the plaintiff. This action is brought to recover the damages caused by his refusal.

The complaint assumes to set forth the grounds upon which that refusal was based. The warrant of attachment in the plaintiff's action was delivered to the sheriff more than eight years after a warrant of attachment was delivered to the sheriff of the county of New York in an action against the same defendant,in which one M. Sergey Friede was plaintiff. The question presented under the allegations of the complaint is whether the plaintiff's warrant of attachment is junior to any rights acquired under the warrant of attachment in the Friede action.

It appears from the allegations of the complaint that at the time the sheriff received the warrant of attachment in the plaintiff's action, no levy had been made by the sheriff in the Friede action upon the sum due from the National Bank of Commerce. If the time had not yet elapsed in which a valid and effective levy could be made under the warrant of attachment in the Friede action, then undoubtedly under the provisions of sections 960 and 961 of the Civil Practice Act, the sheriff, levying upon the bank account, was required to ‘take the same proceedings as if the levy was made under the first warrant,’ i. e., the warrant in the Friede action which he had received many years before.

Judgment had been entered in the Friede action two years before the sheriff received the warrant of attachmentin the plaintiff's action. In Lynch v. Crary, 52 N. Y. 181 this court decided that the power to levy an attachment does not survive the recovery of judgment in the action. ‘Its power was then spent so far that no new right or interest in the property of the defendants could be acquired under it.’

We have stated that the defendant against whom the warrant of attachment was directed is a foreign banking corporation not doing business in this state. It appears from the allegations of the complaint that the summons in the Friede action was served otherwise than personally and the defendant did not appear in the action. Under the provisions of section 520 ‘the judgment can be enforced only against the property which has been levied upon by virtue of a warrant of attachment at the time when the judgment is entered.’ Such a judgment is in effect a judgment...