Lupton v. Smith

Davis, P. J. — The appeal in this case presents a single question and that is, whether, under section 238 of the Code of Procedure, the plaintiff in attachment cases may, by giving the bond therein provided, prosecute in his own name the action which the sheriff is authorized to bring by sections 232 and 237 of the Code. This question has received consideration in various cases, and conflicting views have been expressed upon it. In Skinner agt. Stuart (39 Barb., 216) the point was not directly involved, because that was an action brought • by the plaintiff in attachment proceedings to compel the delivery of tangible property to the sheriff; but Clerke, J., in his opinion, discusses the effect of section 238, and expresses the conclusion that debts, credits and effects may be collected in actions brought in the name of the attaching creditor, on [264] giving the bond. In The Mechanics' Bank agt. Dakin (50 Barb., 587) the question was not directly involved, but Leonard, J., examined it and came to a conclusion directly the reverse of that expressed hy Mr. Justice Clerke. In Millbank agt. The Broadway Bank (3 Abb. [N. S.], 223) the only question to which the attention of the court seems’ to have been called was whether, in an action pending in the name of the plaintiff, the bond to the sheriff could be filed nunc pro time. The 'court, Ingraham, J., held that, under sections 173 and 174 of the Code, the power to relieve from the consequences of such an omission existed. What would have been the views of the learned justice on the question now before us, if the point had been raised, is at most mere matter of inference from the order granted. The point was only incidentally alluded to in O'Brien agt. The Glenville Woolen Co. (50 N. Y., 128, and in 51 N. Y., 519), in which the court of appeals and the commission of appeals appear to be in conflict upon the question really involved in those cases. Mo where do we find the question so directly presented as in Van Valkenburgh agt. Bates, in the New York superior court at special term (reported in note to O'Brien agt. The Mechanics and Traders' Tire lnsurance Co., 14 Abb. [N. S.], 314), in which Van Vorst, J., in a clear and able opinion which reviews all the authorities, comes to the following conclusions: 1st. That an action in aid of an attachment, brought to enforce choses in action upon which an attachment has been levied, must be brought in the name of the sheriff or in the name of the debtor in the attachment. 2d. That the provision of the Code (section 238), that actions may be prosecuted by the plaintiff in the attachment, do not authorize the plaintiff to bring them in his own name, but enables him to take the control of such suits when brought by the sheriff, or to bring the same in the sheriff’s name on executing the bond of indemnity to the sheriff required by said section. [265] These conclusions have our full concurrence; and the reasons set forth by the learned judge in his opinion, as we think, lead irresistably to the result at which he arrived. We adopt them as our own, and, in consequence, affirm the order appealed from, with ten dollars costs of the appeal, besides disbursements. C. Donohue, J., concurs.