Schussel v. Willett
New York Supreme Court
This was an action against the late sheriff to recover damages for the alleged wrongful conversion of a large amount of personal property. It appeared that the plaintiff was the assignee of one Michael Mayer, and that the assignment was made for the benefit of creditors; the defendant seized the goods on an attachment issued in behalf of a creditor of the assignor who had not obtained a judgment at the time of the issuing of the attachment.
Read the full summary
This was an action against the late sheriff to recover damages for the alleged wrongful conversion of a large amount of personal property. It appeared that the plaintiff was the assignee of one Michael Mayer, and that the assignment was made for the benefit of creditors; the defendant seized the goods on an attachment issued in behalf of a creditor of the assignor who had not obtained a judgment at the time of the issuing of the attachment. The defendant alleged that the assignment to the plaintiff was fraudulent and void on its face. On the trial it was admitted by the plaintiff that…
1Opinion of the Court
By the court, Leonard, Justice.
The proceeding by attachment under the Code is in rem, and is collateral and auxiliary to the action. The warrant authorizes the seizure of the property of the defendant therein, and creates an inchoate lien thereon. Such lien would be useless as a remedy if it cannot be defended against false or fraudulent claims made by third parties. It is said that the attaching creditor, having no judgment, does not stand in a position to resist the claims of a fraudulent purchaser from the defendant in the attachment. If so, the remedy is useless as a means of securing the…
2Cases cited1 opinion
- Hall v. StrykerNew York Supreme Court · 1859
3Cited by1 opinion
- Wolcott v. AshenfelterNew Mexico Supreme Court · 1890