Mertz v. Fenouillet

Van Brunt, P. J.: This is an action brought against the president of a joint stock association. The affidavit upon which the attachment was procured alleges that the defendant is the president of an unincorporated association consisting of more than seven persons, and that the action is brought against him in his representative capacity. After setting out certain causes of action, the affidavit alleges that the defendant, as president of said association, and the members thereof are not residents of the State of New York, but are all residents of France, and that said association is located and carries on its business at Ollioules, France. Upon this affidavit a warrant of attachment was issued which recites that an application had heen made to the judge granting the warrant by the plain tiff for an attachment against the property of Theodore Fenouillet, as president, etc., defendant, in an action in the Supreme Court for New York county, and that upon such application it duly appeared to the satisfaction of the judge that a cause of action existed in favor of the plaintiff against the defendant, etc., and that said defendant and all the members of said association are not residents of the State of New [224] York, and that they reside in France. By this warrant the sheriff was commanded to attach “so much of the property within your county which the said defendant has, or may have at any time before final judgment in this action.” A motion was made upon these papers to vacate the attachment upon the ground that no attachment could issue against a joint stock association, and, further, that no ground for the issuance of an attachment such as the one in question was shown to exist. Upon an examination of the provisions of the Code in reference to actions by or against an unincorporated association, it will be seen that section 1921, among other things, provides that where a judgment is docketed for a sum of money in such an action, an execution issued thereon must require the sheriff to satisfy the same out of any personal property belonging to the association, or owned jointly or in common by all the members thereof, omitting any direction respecting real property. In the case at bar the attachment is issued against the defendant as president and not against the property belonging to the association or owned jointly or in common by all the members thereof. The president of a joint stock association does not own the property of the association, and hence it would appear that no process whatever has been issued against the association; and if a judgment were obtained in this action the execution would run against the property entirely different from that which was sought to’ be made the subject of levy under the warrant of attachment. It is clear that the execution must follow the attachment, as it is only attached property which may be reached by execution in an action of this description. This seems to be fatal to the warrant, which would not authorize the sheriff to take any property belonging to the association or owned jointly or in common by all the members thereof. The order must be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted, with ten dollars costs. . Barrett, Rumsey, Williams and Patterson, JJ., concurred.