Whitney v. Davis

• Decision Date: 21 January 1896
• Citation: 42 N.E. 661,148 N.Y. 256
• Parties: WHITNEY et al. v. DAVIS et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 256

42 N.E. 661

WHITNEY et al.

v.DAVIS et al.

Court of Appeals of New York.

Jan. 21, 1896.

Appeal from supreme court, general term, Fifth department.

Action by Edmund C. Whitney and August Beck, as sheriff, against Joseph Davis and others. From an affirmance (35 N. Y. Supp. 531) by the general term of an order denying plaintiffs' motion for a new trial on the ground of newly-discovered evidence, plaintiffs appeal. Affirmed.

Norris Morey, for appellants.

Ansley Wilcox, for respondents.

GRAY, J.

This action was brought in aid of an attachment which had been issued in another action against the defendant Davis. In that other action this plaintiff, Whitney, as assignee of the Lincoln National Bank of Boston, Mass., had sued Davis upon certain promissory notes, upon which he was indorser. Both plaintiff and defendant were residents of the state of Massachusetts, and the summons and complaint therein were served there. The plaintiff in that action procured the issuance of an attachment against the defendant as a nonresident. Before the defendant's time to answer in that action had expired, the plaintiff and the sheriff, in whose hands the writ of attachment had been placed, commenced this action against said Davis and two other persons, seeking to set aside, on the ground of fraud, the transfers of certain lands in Erie county, through which their title had passed out of Davis into other persons, also nonresidents of the state. A trial of the present action resulted in the dismissal of the complaint upon the merits. After its determination, the trial of the action upon the promissory notes was had, and it, also, resulted in a judgment dismissing the complaint upon the merits. Subsequent to the result of that trial, a motion was made in the present action for a new trial thereof, upon the ground of newly-discovered evidence. That motion was denied, for the reason, as stated in the order, ‘that this action was prematurely brought,’ and ‘without a consideration of the motion upon the merits.’ The general term affirmed that order, and the plaintiffs have appealed to this court.

The form of the order is, doubtless, such as to permit us to review it, inasmuch as, if correct, it was final in its operation upon the plaintiffs' right to proceed in the action, and determined the same. The question which this appeal presents must turn upon the construction which is to be given to subdivision 2 of section 655 of the Code of Civil Procedure, which was added as an amendment to the section, by the legislature, in 1889. Prior to its enactment, there was no way in which an action upon a money demand against a nonresident debtor who had not appeared could be brought to judgment, if the attachment issued therein had not been levied upon the property of the debtor. That was an essential prerequisite to the entry of judgment upon default. Code, §§ 1216, 1217. In the present case, as the property of the defendant Davis within the state had consisted of real estate, and had been conveyed away by him, no levy of the attachment against his property was possible, and hence no judgment could have been entered therein, had Davis elected to suffer a default. There was no authority for the plaintiff to bring an action in equity to set aside the transfer by Davis of his real property, under any provision of the Code, and the circumstances of the case were not of such a character as to justify the interference of equity. The case of People ex rel. Cauffman v. Van Buren, 136 N. Y. 252, 32 N. E. 775, which is cited to us on both sides, presented a question as to the power of the supreme court, in the exercise of its equity jurisdiction, to interfere, at the instance of an attaching creditor, in an action brought in aid of his attachment. Earlier cases in this and in other courts were noticed, and it was held that a plaintiff who had attached personal property, fraudulently transferred, was entitled to have his attachment lien preserved until he could merge his claim in a judgment, and issue final process for its collection. The circumstances were peculiar. Chattels had been levied upon by the sheriff, under executions issued upon fraudulent judgments, and they were attached at the suit of Cauffman's firm. They were about to be sold to satisfy the executions. Cauffman & Co. had sued upon their claim, and had obtained and issued the warrant of attachment, upon the ground of a fraudulent disposition by the debtors of their property. They then commenced an action upon the equity side of the court against the fraudulent judgment creditors and the sheriff and the defendants in the attachment suit, in which they demanded the relief that the liens of the fraudulent judgment creditors under their executions should be postponed to the lien of the plaintiffs under their attachment, and meanwhile the sale was enjoined. The point presented for decision was whether the attaching creditors had the right to prevent the application of the attached property to the payment of a prior lien. The decision recognized the general rule to be well settled that, until after the recovery of the judgment and the issuing of execution, no equitable action could be maintained by the attaching creditor to set aside fraudulent transfers, or to reach equitable assets. Thurber v. Blanck, 50 N. Y. 80, and Bank v. Dakin, 51 N. Y. 519, were cited as authorities which were not in conflict with each other, because contemplating different conditions of the property sought to be reached. But it was held that a court of equity...