Excelsior Steam Power Co. v. Cosmopolitan Pub. Co.

BARRETT, J. The plaintiffs’ difficulty in this case is that the particular debt due by the defendant to Brown, to recover wdnch this action was brought, was not attached. The attachment was [558] served on the 14th of July, 1890. At that time there was nothing due by the defendant to Brown for the printing of the August magazine. This latter work was not completed until the 29th of July, 1890, and the defendant’s indebtedness therefor did not accrue to Brown until 30 days after the latter date. This the referee ■expressly finds. He also finds that the defendant has paid to the sheriff all the money in which it was indebted to Brown when the attachment of the plaintiff company was served. The rule with respect to the attachment of debts is well stated in 1 Am. •& Eng. Enc. Law, p. 696: “The debt for which an attachment will lie must be an actually subsisting ■debt, due, or about to become due, by efflux of time. If the liability be merely possible, and dependent upon a contingency which may never happen, attachment does not lie.’’ The rule is similarly stated in Drake on Attachment (6th Ed., § 551): “The debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must, moreover, be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature- that it is uncertain and cont'ngent whether anything will ever be due in virtue of it, it will not give rise to ■such a credit as may be attached; for that cannot properly be called a ‘debt’ which is not certainly and at all events payable either at the present ■or some future period.” See, also, Wade, Attachm. § 17; Drake, Attachm. (6th Ed.) §§ 24, 25; and Mathot v. Bank (City Ct. N. Y.) 6 N. Y. Supp. 498. The present case is directly within this principle. What was •due when the attachment was served has been fully paid to the sheriff. Beyond the sum so paid, there was nothing then due or ■certainly to become due to Brown. Whether anything more would thereafter become due to him depended upon a contingency; namely, the doing by him of certain work. The printing of the magazine was a condition precedent to the defendant’s liability. Where property sought to be attached is incapable of manual delivery, the law as to levying is strict. Thus, it has been held that where the levy is made by service of attachment and notice upon the person against whom the demand is made, the latter must look solely to the notice to ascertain what property is attached, and base his action thereon. Hayden v. Bank, 130 N. Y. 146, 29 N. E. 143. As to property not specified in the notice, the ■court held that the title was not divested, and the holder thereof remained liable to the owner. In Anthony v. Wood, 96 N. Y. 185, it was said by the court of appeals that that court had held, “as to the levy permitted to be made upon choses in action, that the attachment reached and became a lien only upon such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law.” The learned referee acknowledges the force of the defendant’s position, and he concedes (citing Bills v. Bank, 47 N. Y. Super. Ct. 302) that, had another creditor of Brown attached this same debt after the work had been completed and the price earned, such other creditor [559] might well have gained a higher right than that of the plaintiff. He holds, however, that, as no other rights had intervened, the defendant could not rely upon the objection. This latter view cannot well be upheld. If interveners would have superior rights to those of the plaintiffs, it could only be because they had attached the debt, and the plaintiffs had not. There is no such thing as lawfully attaching the debt as to one person, and not lawfully attaching it as to another. It was either attached, or it was not attached. Here it was not attached, because there was nothing to attach (beyond the sum which has since been paid to the sheriff) when the levy was made. The statute made ample provision for the attachment of the particular debt in question after it became due (Code Civ. Proc. § 644); but the plaintiff did not choose to avail itself of the right given by this section to levy “from time to time, and as often as necessary,” until its claim was secured. The learned referee is in error in supposing that the commencement of this action was equivalent to a new and additional levy after the maturity of the debt. The additional levies referred to in section 644 are repetitions of the original levy upon subsequently discovered property, and such fresh levies can only be made in the manner provided by law for the original levy. Payment to the sheriff without an adequate levy would not protect the defendant. He could only defend himself against Brown by showing that the debt was duly attached. The respondent’s contention that the estoppel which the referee found against the defendant, with regard to its alleged offset, should also be applied to the maturity of the debt itself, is farfetched, and without merit. The statements upon which the estoppel was found had no bearing upon the maturity of the debt, but solely upon the offset; that is, upon an offset which might be made against the debt when it did mature. The estoppel did not hasten the maturity of the debt, or affect the legal relations of Brown and the defendant with regard to it. The defendant could not well estop itself into presently owing money to Brown (which the latter miuht never earn) by statements made to influence the plaintiff's conduct with regard to its rights. This action, it will be observed, is not upon the promise found by the referee in his fifteenth finding of fact, quoted by Mr. Justice Follett. Ho such promise is averred in the complaint, nor would the sheriff have been a proper party to an action founded thereon. The present action is strictly statutory. It is brought by the plaintiff in the attachment and the sheriff, jointly, to reduce to possession what was actually attached. Admit that the defendant, as stated in the sixteenth finding of fact, waived all counterclaims which it then had or might thereafter have as against Brown. The question still is, what was due to Brown, leaving out all question of counterclaims, at the time when the attachment was served? The referee sgys that the defendant’s indebtedness to Brown did not then exceed $1,651.47, and that the latter sum has since been fully paid. That would seem to dispose, at least, of this particular action. The defendant did not give the sheriff a certificate [560] acknowledging an indebtedness to Brown of $2,459.96. If such a certificate had been given, there would be some ground for the contention that if the plaintiff in the attachment relied thereon, and failed to attach other property,—a fact, however, which does not appear,—the garnishee should be estopped from denying its accuracy. Short of such a certificate, or of a distinct representation—made upon or after the service of the attachment, and for the express purpose of influencing the sheriff’s action thereunder—to the effect that the property levied upon belonged or the debt attached was due to the defendant, there can be no estoppel as against the actual fact. It would, indeed, be a strange rule whereby garnishees were to be estopped by admissions made to creditors of their creditor prior to the issuance of the attachment.. Here the agreement between the plaintiff company and the defendant was made two days before the attachment was issued. Surely no estoppel was created thereby which could operate upon the attachment proceedings which followed. Whatever rights the plaintiff company may have acquired undertheagreementwereindepeudentrights,not rights created by estoppel; and such independent rights cannot be impressed upon its status as attaching creditor of Brown. Brown was not a party to this independent agreement, and the relations between him and the defendant were not altered thereby. The defendant is, in fact, still liable to Brown for every penny which was not lawfully attached. It was one thing for the plaintiff company to proceed against the defendant upon the promise found by the referee; another to proceed against Brown by attachment. As it chose the latter course, it is impossible to hold that the sheriff attached what, in point of fact, was not due to Brown, and what might never become due to him, merely because the garnishee had previously promised such payment to the plaintiff in the attachmént. The referee’s error results from a failure to distinguish between the rights secured to the plaintiff company by the defendant’s promise to it, and the rights which it secured under its attachment against Brown. The attachment was against Brown alone. What the plaintiff company secured thereunder it secured solely in Brown’s right, not in its own. If, therefore, when the attachment was served, Brown had no right of action against the present defendant for the sum here claimed, such sum was clearly not attached. Now, Brown concededly had then no such right of action; none in his own right; none, certainly, in the right of the plaintiff company; for the promise made to the plaintiff company was, if anything, as Mr. Justice Follett.well observes, a new anil original undertaking, founded upon a valuable consideration moving from such company. Keeping this clearly in mind, we think it apparent that the particular claim here sued on was not attached; for, as we have seen, Brown had no such claim in his own right, and it certainly was not conferred upon him by a new and • independent agreement between other parties. It follows that the judgment should be reversed, and a new trial ordered before another referee, with costs to the appellant to abide the event.