Hankinson v. Page

Wallace, J. Exceptions have been filed by the plaintiff to the rulings of the referee before whom this action was tried, and a motion for a new trial is founded upon the errors alleged by the exceptions. The action was brought originally in the supreme court of the State of New York and was removed to this court. The only question litigated on the trial before the referee was whether jurisdiction was obtained by the State court over the person of the defendant by the due service • of process. The defendant was a non-resident of the State .and the action was sought to be commenced against him by the levy of an attachment upon property alleged to belong to the defendant within this State. The defendant did not appear generally, in the action •but appeared by attorneys who served a special answer in the action “ for the purpose" of raising the issue as to the jurisdiction of the court only.” The answer alleged that .the court did not have jurisdiction because the summons — 276 — was served upon the defendant in the State of Vermont,, and that although a warrant of attachment was granted against the property of the defendant he did not have any property in this State and no levy had been made upon his property. The qualified appearance of the defendant was not a waiver of the objection which the answer was interposed to raise. A general appearance in the action-would have been waiver. Commonly such an objection is raised by a motion to-dismiss the summons, but in some cases the question presents an issue of fact which can be more satisfactorily determined by an answer in the nature of a plea in abatement. Sections 488 and 498 of the Code of Civil Procedure expressly authorize the defendant to present the objection by an answer. The case of Bamberger v. Baker (35 Hun, 455) is directly in point to the effect that such an answer as was interposed here is not to be regarded as a general appearance in the action, and authorizes the defendant to contest the fact whether the court acquired jurisdiction by the sufficient service of process. If the attachment issued by the State court was levied, upon the property of the defendant the court acquired jurisdiction to the extent necessary to satisfy the plaintiff’s demand out of the property seized. By the provisions of the Code of Procedure of this State an attachment may'be levied upon “a cause of action ai’ising upon contract, including a bond, note or other' instrument for the payment of money only, negotiable or' otherwise,” whether past due or yet to become due, which belongs to the defendant (section 648), and the sheriff who-executes the writ must collect all debts, effects and things-in action subject to the direction of the court, and may maintain any action or special proceeding in his own name or name of the defendant, which is necessary, for that purpose (section 655), and it is made his duty to take into his custody all books of account, vouchers and other papers to-the property attached (section 644). It is provided by sec277 vtion 649 that a levy under a warrant of attachment must be made “ upon personal property, capable of manual delivery, including a bond, promissory note or other instrument for ■the payment of money, by taking the same into the sheriff’s actual custody.” The same section provides that the levy ■upon other personal property must be made by leaving a certified copy of the warrant, and a notice showing the •property attached, with the person holding the same ; or if it consists of a demand other, than a bond, promissory note, or other instrument for the payment of money, by leaving a certified copy of the warrant and notice with the person .against whom the demand exists. The levy in this case was sought to be made by serving a copy of the warrant and notice upon several insurance companies which had issued policies of insurance upon the -life of John B. Page, then lately deceased, of whom the defendant was one of the heirs at law, but without an .attempt by the sheriff to take the policies into his actual custody. Similar service was made upon the National Benefit Society. This was a benevolent association of which .John B. Page was a member up to the time of his death. That association had not issued a policy of insurance, but at the time of the service of the warrant of attachment was under a contract liability to the heirs at law of John B. Page to assess upon and collect from the several members of the association the sum which each member had agreed to pay on the •death of another member, and was obligated to pay out of the sum thus collected from its members, an amount not exceeding $5,000, to the heirs at law of John B. Page. The defendant, in conjunction with the other heirs at law of John B. -Page, had a vested demand against the association • which was not then payable, but would become payable shortly thereafter, and upon non-payment could proceed by appropriate remedy to compel the association to assess, collect ■and pay the amount of its obligation. Unless the defend.ant’s demand against that association falls within the category of personal property “ capable of manual delivery, — 278 — including a bond, promissory note, or other instrument.for the payment of money,” the sheriff was not required to take-anything into his manual custody, but made due service by leaving a certified copy of the warrant and notice with the association. The only instrument evidencing the obligation of the association to collect and pay the sum mentioned to the heirs' at law of John B. Page, upon his death was a certificate of membership in the association, which had been delivered by the association to John B. Page. This certainly was not an evidence of debt in the ordinary acceptation of the term, like bonds, notes and ordinary instruments for the payment of money. Even a policy of insurance would not fall within this description (Anonymous, 6 Cow. 41 ; Tyler v. Ætna Ins. Co., 2 Wend. 280). All contracts which contain an obligation for the payment by one of the parties are in one sense instruments for the payment of money. A contract in writing for the building of a house between the owner and the buiider, is in this sense an instrument for the payment of money on the part of the owner, although the payments to be made by him generally depend upon the completion of the work by the builder (Alder v. Bloomingdale, 1 Duer, 601). There is also a large class of contracts strictly unilateral in-which the promise is one for the payment of money only, but by which the money is payable conditionally. A policy of insurance belongs to this class. These contracts are evidenced by instruments signed only by the maker and are delivered to the payee or obligee, and presumably the originals are not to be found in the possession of the party who promises to pay. It is unreasonable to suppose that all contracts under which money may become payable were-intended to be included in the language under consideration. At most it would seem to be intended to apply only to such unilateral contracts for the payment of money as are* usually evidenced by written instruments delivered by the-payer or obligor to the payee or obligee. The provisions’, requiring the instrument to be taken into the sheriff’s-actual — 279 — custody relate to property “ capable of manual delivery.’7 It ¡irobably refers to the same instrument mentioned in section 648 “ for the payment of money only, negotiable or otherwise.” It appropriately includes all instruments like bonds, notes, bills of exchange and certificates of deposit, the title to which may pass by delivery and do not require a formal assignment in order to enable the person to whom the instrument is delivered to maintain an action upon it in his own name. Upon the rule noscitv/r a, sooiis, the words “ other instrument for the payment of money,” are to be interpreted as' referring to instruments of similar character with bonds and promissory notes, such as are evidences of debt and the title to which passes by delivery merely. But there is also fair reason to contend that the provision is intended to' include all other instruments which are unilateral contracts for the payment of money only. The apparent purpose of the provision is to require the sheriff to reduce the property attached, to his possession, so far as under the circumstances it can practically be done. This is the rule which prevails in the absence of statutory direction. In general to constitute a sufficient attachment of personal property the officer must take such custody of it upon a levy as will enable him to retain and assert his power over it, so that it cannot probably be withdrawn or taken by another without his knowing it (Hemingway v. Wheeler, 14 Pick. 408 ; Tomlinson v. Collins, 20 Conn. 364 ; Odiorne v. Colly, 2 N. H. 66; Blake v. Hatch, 25 Vt. 555 ; Larned v. Van Denberg, 7 How. Pr. 379). When a unilateral instrument, containing the promise of another to pay money, is in the possession of the defendant himself, or, belonging to the defendant, is in the possession-of a third person, if it is practicable for the sheriff to take it into his actual custody, the Code provision would seem to require him to do so. In accordance with these views the referee was correct in his conclusion that the attachment-was not levied as the statute directs upon the policies of — 280 — insurance. But a certificate of membership cannot upon any reasonable theory be considered as an instrument for the payment of money within the meaning of the provision in question, and the interest of the defendant in the demand against the National Benefit Society was properly attached by the sheriff. It is insisted for the defendant that the demand of the defendant against the National Benefit Society was in the nature of equitable assets, and therefore could not be attached. Although an attachment is a special remedy at law, and in the absence of statutory authority does not reach property or interests which can only be realized by the ■assistance of a court of equity, the tendency of legislation in this country has been to enlarge the operation of the writ, and subject interests in all kinds of property to seizure ■under an attachment which are not subject to execution at law (Drake on Attachment, § 7). In tins State the common law and equity jurisdiction .■are blended in the same tribunal, and there is consequently mo inconvenience in extending the remedy of an attachment -so that the levy will embrace equitable interests of the -defendant in real and personal property. The question is whether this has been done by the provisions of the Code. No decisions of the State courts have been cited by counsel ■in which the precise question now presented has been considered. But in Thurber v. Black (50 N. Y. 80), the court of appeals, in considering the effect of an attachment under the Code then existing, in which the provisions were similar to those of the present Code, were of the opinion that the lien of an attachment upon choses in action and debts could only be created upon legal titles, and not upon mere equities. The court used this language : “ Debts and choses in action are to be regarded as legal assets under the attaclianent laws, wherever that process acts directly upon the legal title, but whenever they are so situated as to require the exercise of the equity powers of the court to place them in that-situation, they must be treated, as they always'were, — 281 — ■as equitable assets only ” (See also Castle v. Lewis, 78 N. Y. 185, and Anthony v. Wood, 96 N. Y. 180). The question thus considered, although not the exact question here, involves somewhat the meaning of the Code provisions, and the consideration whether they extend the lien of an attachment so as to operate upon choses in action which can be. collected only in a court of equity. These citations seem to sustain the defendant’s contention, and it is significant as tending to the same conclusion that the causes of action arising upon contract mentioned in section 648, which are specifically enumerated in the section, are all ■of them causes of action at law. The conclusion, therefore, is that the Code provisions were not intended to create any innovation upon the generally prevailing and original system of the remedy by attachment under which the operation of the process is confined to legal debts as contra-distingiiished from equitable -demands. This conclusion, however, does not help the •defendant, unless it can be maintained that the defendant’s remedy upon the cause of action to secure the sum payable to him is exclusively in equity. The association undertook to pay him a sum of money by making an assessment upon its members and paying what should be realized thereon, not exceeding $5,000, to the beneficiaries named in the contract. Upon refusal to make the assessment, it would be liable at law for such sum as might have been collected if it had fulfilled its undertaking. It would not be permitted to allege that nothing was due the plaintiff because of its own default in not doing what it had agreed to do. Any condition in the contract by which it is attempted to deprive the beneficiaries of the judgment of a court of •competent jurisdiction as to the extent of the legal obligation of the association could not stand in the way of a recovery. Such a condition affects the right to a judicial trial, and is void as against public policy (Insurance Co. v. Morse, 20 Wall. 445 ; Nute v. Hamilton Mutual Ins. Co., 6 Gray, — 282 — 174, 181; Tobey v. County of Bristol, 3 Story, 800). On the other hand, if the association should collect the sum payable from the members, or any part of it, the money Av.ould belong to the beneficiaries, and they could maintain an action at latv to recover it. Doubtless they could resort to equity, and seek a mandatory injunction to compel the association to make an assessment upon its refusal to do so ; but although they might elect to pursue this course, they would not necessarily have to do so. It must, therefore, be held that the attachment, was-properly levied upon the demand of the defendant against the Xational Benefit Society, and consequently that the defense of want of jurisdiction should not have prevailed. A new trial granted.