Lax v. Peierls

Bijur, J. This appeal presents a single question of law. Defendants were bankers and had a credit on their books in favor of one of their customers, the Consolidated Embroidery Works, when plaintiff, as marshal, undertook to attach this credit in an action by a third person against the Consolidated Embroidery Works under section 78 of the Municipal Court Act (the substantial equivalent of section 649 of the Code) and received from defendants a certificate pursuant to section 79 of the act (similar to section 650 of the Code). The certificate read as follows: “ We hereby certify that we have in our possession $291.97 to the credit of Consolidated Embroidery Works * * * and we shall hold the same subject to the further order of the Court.” It developed subsequently that the Consolidated Works had, prior to the attachment, but without notice to the def endants, assigned this credit to another party. After the attachment was levied, and as a result of certain legal proceedings (the details of which are not material) defendants paid the amount to such assignee. This suit was then brought under section 81 of the act to collect the debt attached. It is well settled that, under this form of attachment, levied upon a chose in action, all that is impounded by the sheriff is the title or right of the owner thereto. See Warner v. Fourth Nat. Bank, 115 N. Y. 251; Simpson v. Jersey City Contracting Co., 165 id. 193. Plaintiff claims that defendants are estopped to [28] deny the title of the Consolidated Works to the credit. I do ’ not think that the giving of the certificate has such effect. Plaintiff cites a number of cases in which an estoppel is held to have arisen under comparatively similar circumstances, but, on examination, it will be discovered that in these cases the defendant is held to be estopped either to claim title in himself after he has given the sheriff a receipt for the further custody of physical property attached; or to deny that the full amount is due, he claiming "that less is due than the amount for which he gave the certificate. See for example, Cornell v. Dakin, 38 N. Y. 253; and Excelsior Steam P. Co. v. Cosmopolitan Pub. Co., 154 id. 772, reversing the same case below on the dissenting opinion of Follett, J., reported in 80 Hun, 592, 597. It is evident that in those cases the estoppel operated against the assertion by the defendants of a state of facts contrary to that recited in the certificate, in respect of matters necessarily within the personal knowledge of the person making the certificate. In the case at bar, the marshal must have known that the defendants did not and could not have personal knowledge that their creditor had not previously, without notice, assigned the claim. It would, I think, be unreasonable and contrary to the meaning of the act to assume that the person upon whom an attachment is served in this way warrants as against the whole world the title of his creditor. This is all the more true in view of the fact that the certificate is given in invitum. See §§ 78, 80. Moreover, the very language of this certificate: “ 209.97 to the credit of Consolidated Embroidery Works ” emphasizes the view which I entertain. See, also, Almy v. Thurber, 11 Daly 3; affd., 99 N. Y. 407. In my opinion, the certificate contains no statement [29] of a fact so far as the ownership of the debt by the Consolidated Works is concerned, hut only a statement of what is substantially an opinion. Consequently the doctrine of estoppel is inapplicable. Guy and Pendleton, JJ., concur. Judgment reversed, with costs, and complaint dis-. missed, with costs.