Opinion
November Term, 1901.
Joseph Kling, for the appellant.
Mark H. Ellison, for the respondent Katz.
Charles F. Wells, for the respondent Grell.
The appellant contends that the levy made under the attachment in favor of the defendant Katz was invalid for the reason that both the debtor and creditor were foreign corporations, and that, therefore, no levy under an attachment granted by the courts of this State is authorized. Reliance is placed in support of this contention upon the case of Carr v. Corcoran ( 44 App. Div. 97), but in that case both the debtor and the creditor were non-residents, the res was not within the jurisdiction of the court, and under such circumstances it was held that a levy was unauthorized.
That case recognizes, however, that where the res, the thing to be levied upon, is within the jurisdiction of the court, it may be attached, and in Simpson v. Jersey City Contracting Co. ( 165 N.Y. 193) it was held that the stock of a foreign corporation belonging to a non-resident but in the possession of a resident of this State was subject to levy under an attachment. In the present case the defendant Katz is a resident of this State, and the money represented by the debt is also within the jurisdiction of this court; consequently, within both of the above authorities the attachment and levy were authorized. Aside from these considerations it appears that the American Bicycle Company had an office, was engaged in the transaction of business within the State, and the debt which was the subject of the attachment was incurred by it in the course of such business. As to a corporation so situated, a different rule prevails from that which obtains where the foreign corporation does no business within the jurisdiction of the court. The latter is to be regarded as a non-resident exclusively, and the rule announced in Carr v. Corcoran ( supra) and in Douglass v. Phenix Ins. Co. ( 138 N.Y. 209) applies. As to the former, however, it is not regarded as a non-resident as to the business which it carries on within the court's jurisdiction, and the situs of the debt which it owes, incurred in connection with the business so transacted, is of the place where the business is done, and the corporation to this extent may be regarded as a resident, the debt as having its situs here, and, as both the residence and the res come within the jurisdiction of the court the attachment is enforcible. In principle such a case is not different from that where a foreign corporation brings or sends its property within the court's jurisdiction, and thereby makes it subject to the levy of an attachment in favor of a citizen residing within the jurisdiction. In the present case the corporation is here doing business, the plaintiff sells property to it and delivers it at its place of business within this State; thereby the debt is created; that debt is due here and may be attached as may any other debt, and as to it the debtor corporation is to be treated as a resident. Besides, in this case, this court denied a motion to vacate the attachment and set aside the levy thereunder, and to reach that result necessitated a holding that both were valid.
It is further contended that when the money was paid over to the chamberlain it was in custodia legis, and, therefore, not the subject of a levy. But it was so paid in for the very purpose of furnishing security for the payment of the debt for which the attachment issued, and it was in custody to meet this claim. Under such circumstances it is subject to levy. ( Dunlop v. Patterson Fire Ins. Co., 74 N.Y. 145; Wehle v. Conner, 83 id. 231.)
No sound distinction can be drawn between money deposited voluntarily by the attachment debtor in the custody of the law and money placed there by order of the court to meet the debt which the attachment represents; both are alike subject to levy thereunder.
The extra allowances seem to have been proper in amount and are authorized by law.
It follows that the judgment and orders appealed from should be affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and LAUGHLIN, JJ., concurred.
Judgment and orders affirmed, with costs.