Dunn v. Arkenburgh

Hatch, J.: This action is brought pursuant to the provisions of section 677 of.the Code of Civil Procedure, leave therefor having been duly obtained. The averments of the complaint showing that leave was so obtained are sufficient; and while it does not appear in the order granting the leave that notice of the application was given to the sheriff, yet the defendants cannot take .advantage of that fact. The Code provision in this respect was clearly for the benefit of the sheriff and to protect his rights. The defendants are in nowise prejudiced thereby, and cannot now be heard to complain, even though as to the sheriff a defect existed in this regard. It is undisputed that a certified copy of the warrant of attachment and notice was served upon the defendants as required by law. The statement contained in the notice of the levy of the attachment was sufficiently broad to cover the indebtedness which'was thereafter established to have been due from the testator to Robert H. Arkenburgh. (O'Brien v. Mechanics & Traders’ Fire Ins, Co., 56 N.. Y. 52; [520] Greenleaf v. Mumford, 19 Abb. Pr. 469.) When the certificate' of the interest held by Robert in the estate of the testator was given by Eliza J. Arkenburgh, she made it in the most general terms; limiting it to his interest as residuary legatee. There was, therefore, nothing at that time from, which the sheriff could be accurately informed as to the existence of the debt in favor of Robert, which was afterwards established. But the attachment itself and the notice which was served upon the defendants were broad enough in. their terms to cover such indebtedness, and constituted the attachment a lien thereon. Inability or inadvertence to mention such debt in the inventory filed by the sheriff ought not to be permitted to deféat the lien of the attachment, and the court possessed ample power to authorize an amendment of the inventory embracing such sums. (Vanderheyden v. Gary, 38 How. Pr. 367.) Such power has been exercised from an early day (Smith v. Hudson, 1 Cow. 430), the practice in this regard being sufficiently liberal to secure rights fairly obtained. (Courtney v. Eighth Ward Bank, 14 Misc. Rep. 386.) Upon the final decree made by the surrogate determining the amount which Robert H. Arkenburgh was entitled to receive from the estate, it appeared that the defendant Eliza J. Arkenburgh claimed the amount thereof by assignment. Both parties thus claiming this fund, the surrogate was without jurisdiction to determine the respective rights therein. Such was the express adjudication upon appeal in this case. (Matter of Arkenburgh, 38 App. Div. 473.) While an appeal was taken from the decree of the surrogate, no appeal was taken from that part of the decree which found that the estate was indebted to Robert H. Arkenburgh. As the levy was properly made, and as the surrogate was without jurisdiction to determine the rights of the respective1. claimants, this action was properly brought. (Davidson v. Chatham Nat. Bank, 32 Hun, 138; Kelly v. Breusing, 32 Barb; 601; affd. on appeal, 33 id. 123.) Nothing appears in which C. C. Bank v. Parent (134 N. Y. 527); is in conflict with this view. In thaj: casé there was no. levy of the attachment upon the sum of money which was sought to be recovered in the action, and, therefore, it was held that a creditors action could not be maintained. The case recognizés, however, that had there been a levy upon the property, an [521] action at the instance of the sheriff, under section 655 of the Code, in- aid of the attachment, would lie, as does also the case of Backus v. Kimball (62 Hun, 122). The complaint in this action averred all of the facts, and -was; clearly sufficient if the plaintiff was entitled to recover. It appeared by the evidence that the defendants had the sums of money in their hands or under their control prior to the commencement of the .action. It became their duty, therefore, to pay the same in discharge of the lien prior to the time when the action was commenced. While the action is against the defendants in their representative capacity, yet the right to maintain the same, and the obligation of the defendants with respect thereto, are entirely independent of any matters which concern the administration of the estate or the property of the deceased. Under such circumstances, the provisions of section 3246 of the Code of Civil Procedure are applicable and authorize the award of costs which has been made. Sections 1835 and 1836 refer solely to claims presented by creditors of the decedent and matters which constituted a charge against the estate at the time of the death of the deceased. They have no reference to and do not embrace a claim brought into being by the personal acts of the representative or a claim or demand arising solely out of matters independent of the estate of the deceased. Under such circumstances, the claim is not one against the decedent, and, therefore, does- not fall within these provisions of the Code. As the testimony authorized the court to find that a proper discharge of duty on the part of the defendants required the payment of the money to the sheriff, it -was also proper to direct the payment of interest thereon. (Matter of Trustees, 137 N. Y. 95.) We- find no error in the judgment. It should, therefore, be affirmed. All concurred. Judgment affirmed, with costs.