Summary
In Glassman v. Hyder (28 A.D.2d 974) the order of attachment was deemed ineffective because there was no debt (unpaid rents) due at the time of service.
Summary of this case from Cenkner v. ShaferOpinion
October 5, 1967
Determination of Appellate Term modified on the law to vacate the order of attachment, dated December 20, 1965, and to grant the motion of defendants to dismiss complaint, and determination of Appellate Term otherwise affirmed, with $50 costs and disbursements to defendants; and the complaint is dismissed, with taxable costs. The order of attachment, purporting to levy upon rents owing under a long-term written lease, was served at a time when no rents were due and owing to the defendants under the lease. The enactment of the CPLR did not effect a change in the law (see Seider v. Roth, 17 N.Y.2d 111, 113) and the statutory provisions and decisional precedent require the vacatur of the attachment. Rents not yet due are not attachable as debts to become due "certainly or upon demand". (CPLR 5201, subd. [a]; 6202; see, also, Matter of Ryan, 294 N.Y. 85, 95.) The cause of action for unmatured rents is contingent and thus is not attachable as such. (See Sheehy v. Madison Sq. Garden Corp., 266 N.Y. 44, 47; Fredrick v. Chicago Bearing Metal Co., 221 App. Div. 588.) The levy is ineffective because "at the time of service", the lessee did not "owe(s) a debt to the defendant". (See CPLR 6214, subd. [b].)
I would affirm the determination of the Appellate Term. CPLR 6202 provides that any debt against which a money judgment may be enforced under CPLR 5201 is attachable. Under 5201 (subd. [a]) it is provided that a money judgment may be enforced "against any debt, which is past due or which is yet to become due, certainly or upon demand". The precise question is whether rent under a lease is a debt certainly to become due. The statutory words have never been interpreted directly in this context. It is true that the general nature of instalments of future payments for rent provided for in a lease have received interpretation. In the case cited in the majority opinion ( Matter of Ryan, 294 N.Y. 85), the lease in question was of an extraordinary character, and the obligation to pay rent was stated by the court to be "made contingent by the express provisions of the lease" (p. 95). Surely the words "yet to become due, certainly or on demand" have some meaning and there must be situations in which they have application. And this despite the fact that every debt not yet due may possibly never become due. Even a promissory note is not certain to become due, as the holder may at any time release the maker. To reach a determination of what obligations the Legislature considered as certainly to become due it is not helpful to employ philosophical ultimates. True it is that not all provisions for future payment will certainly ripen into enforcible obligations; and in situations where there is a dependence on satisfactory performance it has been held that such certainty does not exist ( Sheehy v. Madison Sq. Garden Corp., 266 N.Y. 44). But in other situations the remote possibility that the agreed on obligation will not develop into a present claim has not affected its liability to attachment. It is now established that an insurer's promise to defend and pay a claim against the insured is an attachable debt ( Seider v. Roth, 17 N.Y.2d 111) though there are countless contingencies which might defeat the insured's right to enforce the obligation. And in addition there is positive evidence that the Legislature regarded rent reserved in a lease as a debt certainly to become due. CPLR 6214 (subd. [b]) defines the effect of a levy. Included are "all debts * * * then due or thereafter coming due to the defendant, shall be subject to the levy." The effect of the majority holding would be that these words would mean that if an instalment of rent was past due when the levy was made, it was attached, and all subsequent instalments were likewise attached as they became due. It hardly seems reasonable to suppose that the Legislature intended to subject future instalments to the levy only in the event that there was an instalment of rent actually due at the moment the Sheriff served the process on the tenant. Rather, it would seem that, barring extraordinary instances, rent to become due in the usual course is a debt certainly to become due. [ 52 Misc.2d 618.]