Opinion
July 12, 1906.
Charles Edward Souther, for the appellant.
Robert Forsyth Little, for the respondent.
This litigation has occupied the attention of the court to a considerable extent for a long period. Every opportunity of making an application to the court and of appealing herein appears to have been embraced. The defendant moved to vacate the order of publication and unsuccessfully contested the service through the Court of Appeals. ( Arkenburgh v. Arkenburgh, 90 Hun, 608; affd., 148 N.Y. 756.) He then moved to vacate the judgment and set aside the execution, and appealed without avail from a denial of that motion. ( Arkenburgh v. Arkenburgh, 14 App. Div. 367.) He also unsuccessfully contested the judgment recovered by the sheriff in aid of the attachment by appeal to this court and to the Court of Appeals. ( Dunn v. Arkenburgh, 48 App. Div. 518; affd., 165 N.Y. 669.) He moved to vacate his default and appealed, without success, from the order denying it. ( Matter of Arkenburgh, 69 App. Div. 618.) The plaintiff, in the course of the litigation, adopted the unknown and unauthorized practice of having a receiver of the trust funds in the hands of the executors of the estate of Robert H. Arkenburgh, deceased, appointed, and an action brought by the receiver against the trust company in which the trust funds were on deposit, and on an appeal to this court the complaint was dismissed. ( Jones v. Arkenburgh, 112 App. Div. 483.) It would seem as though the controversy between these parties might have been adjusted or finally determined long ago; and without resorting to the court and appeals to this extent.
This appeal presents the question as to whether the court was warranted in directing a sale of the judgment obtained in aid of the attachment and of the remaining claim of the defendant against the estate of his father, pursuant to the provisions of subdivision 5 of section 708 of the Code of Civil Procedure. The appellant claims that the attachment merged in the execution issued on the 5th day of August, 1896, on the original judgment, and that the lien of the attachment thereupon terminated. The case of Barton v. Palmer Co. ( 87 App. Div. 35) is cited as authority for this proposition. It is unnecessary to approve or disapprove the doctrine of that case to the effect that an action cannot be brought in aid of an attachment after the return of an execution wholly unsatisfied on the judgment recovered in the action, which appears to be inconsistent with the express provisions of subdivision 2 of section 655 of the Code of Civil Procedure, because in this case, while the lien of attachment may have been suspended by the judgment, or may have merged in the execution, the execution has not been returned and the lien still exists. In the case at bar, the action in aid of the attachment was, as already seen, sustained by this court and by the Court of Appeals. ( Dunn v. Arkenburgh, supra.)
It is to be borne in mind that the defendant was a non-resident, served by publication, and that he did not appear generally in the action to give the court jurisdiction. The sheriff was, therefore, confined in executing the execution to the property upon which the warrant of attachment was levied, for there was no jurisdiction to reach any other property of the defendant. (Code Civ. Proc. §§ 707, 1370.) The sheriff had no authority to sell the interest of the defendant in the estate of his father under the original execution without an order of the court as prescribed in subdivision 5 of section 708 of the Code of Civil Procedure. The powers and duties of the sheriff in satisfying an execution in favor of the plaintiff against property where a warrant of attachment has been levied are conferred and prescribed by section 708 of the Code of Civil Procedure, which provides as follows:
"Where an execution against property is issued upon a judgment for the plaintiff in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows:
"1. He must pay over to the plaintiff all money attached by him, and the proceeds of all sales of perishable property, or of any vessel, or share or interest therein, or animal, sold by him, or of any debts or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment.
"2. If any balance remains due, he must sell, under the execution, the other personal property attached, or so much thereof as is necessary, including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued with the interest coupons annexed, if any, by a government, State, county, public officer, or municipal or other corporation, which is in terms negotiable or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires him to satisfy it out of any other personal property of the defendant, he must sell the personal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property applicable to the execution are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right, title and interest which the defendant had in the real property attached at the time when the notice was filed, or at any time afterwards, before resorting to any other real property.
"3. If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff without having been sold or converted into money, and the attachment has not been discharged as to that property, he must, if practicable, regain possession thereof, and for that purpose he has all the authority which he had to seize the same under the warrant. A person who wilfully conceals or withholds such property from him is liable to double damages, at the suit of the party aggrieved.
"4. Until the judgment is paid he may collect the debts and other things in action attached, and prosecute any undertaking which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment.
"5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit specifying fully all the proceedings of the sheriff, since the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such manner, as it thinks proper. Notice of the application must be given to the defendant's attorney, if the defendant appeared in the action. If the summons was not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice as it thinks proper; or may grant the application without notice."
Subdivision 1 of this section should not be construed as authorizing the sale of an unliquidated claim, such as the defendant's claim against his father's estate appears to have been under the clause relating to the collection or sale of debts or other things in action by the sheriff. It prescribes the duty of the sheriff with respect to paying over moneys attached or collected or received by him, whether under that or the other subdivisions of the section or any other provisions of law. The meaning of its provisions is somewhat obscure. Perhaps it authorizes the sale of a debt or thing in action for the full face value thereof, but it surely does not authorize a sale of unliquidated claims. This subdivision was taken from subdivision 1 of section 237 of the Code of Procedure, which subdivision clearly did not authorize a sale of a debt or thing in action; and Commissioner Throop, in his notes, does not show that it was intended to change the law as it formerly existed. (Throop's Code Civ. Proc. note to § 708.) If subdivision 1 authorized the sale of all debts and things in action, there would be no meaning to the provisions of subdivision 2, which preclude the sale of debts and things in action other than those specified therein; and there would be no necessity for an application to the court which the Legislature has deemed necessary and provided for in subdivision 5.
The nature of the defendant's interest in his father's estate is not disclosed, but it appears to have been assumed that it was an unliquidated claim. Its value probably could not be definitely ascertained until the final accounting of the executor; and until there was a decree of the Surrogate's Court, adjudicating that there was a specific amount in the hands of the executors applicable to the payment thereof and directing them to pay it, no action or other proceeding would lie to obtain it. The sheriff was authorized by virtue of the provisions of section 655 of the Code of Civil Procedure, to maintain, as he did, an action in aid of the attachment to reach any part of the defendant's interest that had become fixed; but as to any part of the claim that has not yet become payable, no action or proceeding can be maintained to have it applied on the execution, excepting by an application to the Surrogate's Court at the proper time. The question is whether the sheriff must hold the execution and pursue that remedy, and perhaps in the meantime have the lien upon the real estate expire by limitation, or whether he should be permitted to sell the fixed claim established by the judgment in aid of the attachment and the remaining unliquidated claim, pursuant to the authority contained in subdivision 5 of section 708, herein quoted. Very likely he should be permitted to sell the unliquidated claim, but there is room for doubt as to the power of the court to authorize him to sell the judgment recovered in aid of the attachment, and as to the propriety of adopting that course, even though there be authority therefor. There is force in the contention that to the extent of that judgment, the lien of the attachment and execution no longer exists, and that the judgment having been recovered since the attachment was levied, could not have been levied upon under the warrant of attachment; and that the defendant's claim against his father's estate levied upon under the warrant of attachment has been merged in the judgment in aid of the attachment to the extent that it was embraced in that recovery.
It is claimed that the moving papers do not show due diligence within the requirements of subdivision 5 of section 708 of the Code of Civil Procedure, in that a court of competent jurisdiction was not sought as directed by the surrogate. The surrogate correctly ruled that he had no authority to determine the validity of the assignment of the defendant to his mother, and that he could not determine, as between the sheriff and the assignee, who was entitled to the money found due from the estate to the defendant. (Code Civ. Proc. § 2743; Matter of Arkenburgh, 38 App. Div. 473; Matter of Randall, 152 N.Y. 508. ) The plaintiff did seek a court of competent jurisdiction, when, together with the sheriff, he brought the action in aid of the attachment, wherein it was necessarily adjudicated that the attachment had priority over the assignment which was made subsequent to the levy under the warrant of attachment, and that judgment also necessarily determines the priority of the sheriff's claim under the execution as to the balance of the defendant's claim against the estate. It does not appear that any attempt was made to enforce the payment of the amount of that judgment by contempt proceedings. The judgment in effect conclusively determined that the amount thereof was in the hands of the executors, applicable to the payment of the defendant's claim against the estate, and presently due and payable. If the trust company has paid the fund into court, it would seem that an order might have been obtained requiring the application thereof to the satisfaction of the judgment; and if it has not been paid into court, or cannot be reached by an order of this court, it would seem that payment might be enforced by contempt proceedings in the Surrogate's Court. However, all efforts on the part of the plaintiff to enforce his judgment seem to have been thwarted by the defendant or his mother. If there was any disposition on the part of the defendant to have the judgment in aid of the attachment satisfied by the executors of his father's will and applied on the execution held by the sheriff under the judgment recovered in this action, it is manifest that it would have been satisfied long ago. If the judgment against the executors is collectible, the defendant should either see that it is paid, or protect his interest by seeing that it is sold for full value on a sale by the sheriff.
We think that the lien of the attachment should be held to cover the judgment recovered in aid thereof, and since the plaintiff has been unable to collect the claim of the defendant against his father's estate, now represented by that judgment, he should, to avoid any further difficulty or obstacle that might arise by a sale of the remaining unliquidated claim, and of the real estate without knowing what, if anything, will be realized upon the judgment in aid of the attachment, be permitted to sell both the judgment and the remaining unliquidated claim.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
O'BRIEN, P.J., PATTERSON and CLARKE, JJ., concurred; INGRAHAM, J., dissented.
Order affirmed, with ten dollars costs and disbursements.