Hayden v. National Bank

Brown, -T.

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. II. Loker & Brother were effectual to attach the funds of that firm on deposit with the defendant. When the defendants in an action are non-residents 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 property intended to be attached, unless such knowledge is derived from the notice required by the statute to be served upon him, and unless there is a substantial compliance with the statute title to the property is not divested and the holder thereof remains liable to the owner.

The Code provides in section 649, sub. 3, that property not capable of manual delivery may be attached by leaving with the person holding the same or, if it consists of a demand other than a bond, promissory note or other instrument for the payment of money, with the person against whom it exists, a certified copy of the warrant of attachment and a notice showing the property attached.

The sheriff in this case left with the bank a certified copy of the warrant and a notice specifying that the property *150 attached was money or other property in possession of the bank belonging to the defendant G, H. Loker. This notice Was plainly insufficient to attach money due G-. H. Loker & Brother and could not be made the foundation for a proceeding to divest the title of the firm to any funds on deposit with the bank. And had the bank paid over to the sheriff under that notice the amount of the firm’s deposit, it could not be held thereby to have discharged its indebtedness, but would still have remained liable therefor to the firm. The claim that the notice was effectual to attach the interest of G. H. Loker in the dep'osit cannot prevail, as it did not specify such an interest, and the complaint did not seek to recover upon such ground.

The plaintiffs ask a reversal on the ground that the warrant and notice were to be read together, and that so taken they informed the bank that the plaintiffs’ claim was against the firm, and hence it must,' be held that they knew that it was the firm property that it was intended to attach. We may assume such to be the fact. But the statute requires the service of both the warrant and the notice, and it is to the latter that the holder of the property must look to ascertain what property is attached, and upon that paper he must base his action. If the proceedings are regular and the court has jurisdiction to grant the warrant, he may discharge his indebtedness to his creditor by paying over or delivering the property specified in the notice to the officer executing the writ in the attachment suit, but if he pays or delivers property not specified in the notice, then the proceedings afford him no protection, and his indebtedness to his creditor is not discharged.

In view of the plain provision of the Code, the cases relating to the sufficiency of a notice to charge an indorser of a nromissory noté are not applicable here.

The holder of the attached property must derive his knowledge of the object in serving him from the notice, and knowledge or information received from other sources is of no importance.

*151 This view has some support in the case of Greentree v. Rosenstock, 61 N. Y. 583 . That case involved the question Avhether a notice served on the defendant to the effect that all credits of - Strauss, Hartman & Hofflin in defendant’s possession were attached, and under which the defendant paid to the sheriff moneys in his hands belonging to Hofflin individually was sufficient to discharge his indebtedness to Hofflin. The Commission of Appeals held that it was not.

The appellant criticizes that case on the ground that it conflicts Avith O'Brien v. Merch. & Traders' F. Ins. Co.

( 56 N. Y. 52 ). To the extent of holding that a notice to be good must specify the particular property intended to be attached, and that a notice in general terms was insufficient, the case is subject to the criticism made against it,- and the court apparently overlooked the case referred to. But not so in reference to the point now under discussion. In addition to what Avas said on the subject of notice couched in general terms, the court said: “ The sheriff referred to the subject of the attachment as though it were the property of the firm of which, Hofflin was a member, instead of the property of Hofflin himself.

f * * The notice Avas plainly insufficient, and the defendant was under no obligation to give heed to it.”

Here the sheriff referred to the subject of the attachment as the individual property of G. H. Loker, and not to the property of the firm. He might have made his notice in general terms, so as to include the property of the firm and of either member thereof, but having limited it to the property of one member, it was insufficient to reach the deposit due to the firm, and the defendant was justified in giving no attention to it.

The judgment should be affirmed, with costs.

All concur, except Potter, J., dissenting.

Judgment affirmed.