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Milliken v. Fidelity & Deposit Co. of Maryland

Supreme Court of New York, Appellate Division

December 18, 1908

MILLIKEN
v.
FIDELITY & DEPOSIT CO. OF MARYLAND.

[113 N.Y.S. 810] Osborne & Lamb, for appellant.

Rand, Moffat & Webb (R. Burnham Moffat, of counsel), for respondent.

Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.

CLARKE, J.

Appeal from an order denying a motion of plaintiff for judgment on the pleadings. The complaint alleges that on or about the 19th of May, 1906, a judgment was rendered in favor of plaintiff, Milliken, against Napoleon B. Dotson, for the sum of $25,850.78; that said Dotson appealed from said judgment upon the 16th day of June, 1906, to the Appellate Division, and on the 14th day of August, 1906, said Dotson caused to be given a written undertaking, executed by defendant, in order to stay the execution of said judgment, which undertaking was, on August 15, 1906, approved by a justice of the Supreme Court and filed on the same date, and a copy thereof served; that by the filing of said written undertaking a stay of execution of said judgment was effected. The undertaking, after reciting the judgment, provided:

" Now, therefore, the Fidelity & Deposit Company of Maryland * * * does hereby, pursuant to the statute in such case made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the appellant on said appeal, not exceeding the sum of $500, and does also undertake that if the judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which said judgment shall be affirmed."

The complaint further alleges that on or about the 14th of July, 1908, a judgment of the Appellate Division was entered in the office of the clerk of the county of New York affirming the said judgment; that on July 14, 1908, a copy of said judgment was served upon the defendant and upon the attorneys for Dotson, the appellant, and a written notice of entry of said judgment of affirmance, and 10 days expired after said service prior to the commencement of this action; that the said judgment is unpaid, and is now due from the defendant to the plaintiff; that the plaintiff has duly performed all the conditions of said undertaking on his part required, and the amount due on said undertaking from defendant to plaintiff is the sum of $25,850.78, which [113 N.Y.S. 811] sum plaintiff has demanded of defendant, and defendant has refused to pay.

The answer denies knowledge or information sufficient to form a belief as to whether the judgment is now due from the defendant to the plaintiff, or as to whether plaintiff has duly performed all the conditions on his part required, or as to whether the amount due on said undertaking is due from defendant to plaintiff. In its second separate and distinct defense it alleges that prior to the recovery and entry of said judgment, and on the 18th of May, 1906, in an action then pending in this court wherein one Arthur C. Booth was plaintiff and the plaintiff herein was defendant, a warrant of attachment against the property of said Milliken duly issued to the sheriff of the county of New York, and a levy was on said day duly made thereunder upon a certain claim or cause of action owned and held by said Milliken against said Napoleon Dotson for the recovery of $25,000, with interest thereon from November 10, 1905; that the suit wherein said judgment of May 19, 1906, was recovered by said Milliken had been brought by him against said Dotson to recover said $25,000 and interest, and that upon the recovery of such judgment the claim or cause of action so in suit was merged therein, and said judgment thereupon became subject to the lien of said levy; that on October 4, 1907, judgment was entered in said action of Booth v. Milliken in favor of the plaintiff therein and against said Milliken for $226,628.93 damages and costs, but on appeal by said Milliken the Appellate Division ordered said judgment reversed and the complaint in said action dismissed, with costs to the defendant therein in the Appellate Division and in the court below; and thereafter, and prior to the commencement of this action, and on July 28, 1908, final judgment was accordingly entered in said action reversing said judgment of October 4, 1907, and dismissing the complaint, with $553.60 costs; that prior to the entry of said final judgment in favor of defendant in said action of Booth v. Milliken, and on July 27, 1908, an order was duly entered therein staying all proceedings on the part of said defendant from and after the entry of said judgment, except to serve upon the attorneys for plaintiff therein a copy of said judgment, with written notice of entry thereof, until the expiration of 10 days after the service of such copy and notice; that pending the stay of proceedings so ordered, and on or about July 30, 1908, plaintiff in said action of Booth v. Milliken duly appealed to the Court of Appeals from said final judgment of July 28, 1908, dismissing the complaint therein, with costs, as aforesaid, and gave an undertaking as required by statute to perfect such appeal and to stay the execution of the judgment appealed from, and such appeal is still pending and undetermined, and the execution of said judgment is still stayed; that prior to the entry of said final judgment of July 28, 1908, in said action of Booth v. Milliken, and prior to the commencement of this action, this defendant had actual notice of said warrant of attachment and the said levy thereunder.

Chapter 166, p. 462, of the Laws of 1908, added a new section to the Code of Civil Procedure, known as 547, as follows:

" If either party is entitled to judgment upon the pleadings, the court may, upon motion, at any time after issue joined, give judgment accordingly."

[113 N.Y.S. 812] The question is whether the answer sets up the facts sufficient to constitute a defense. If it does not, the plaintiff was entitled to the relief demanded by his motion.

We think that the allegation of the answer that in an action then pending in this court, wherein one Arthur C. Booth was plaintiff and the plaintiff herein was defendant, a warrant of attachment against the property of said Milliken duly issued to the sheriff of the county of New York and a levy was on said day duly made thereunder upon a certain claim or cause of action owned and held by said Milliken against said Dotson for the recovery of $25,000, with interest thereon from November 10, 1904, was sufficient, and that thereunder proof was admissible to show that the claim or cause of action alleged to have been fully attached was one arising upon a contract belonging to the defendant and found within the county, and hence subject to attachment under the provisions of section 648 of the Code of Civil Procedure, and if the attachment was duly levied upon said cause of action, as alleged, it became merged in the judgment in the action then pending to recover thereon, and the said judgment became subject to the lien of said attachment. Arkenburg v. Arkenburg, 114 App. Div., at page 445, 99 N.Y.Supp. 1127.

The situation then presented is as follows: Milliken sued Dotson and obtained a judgment. Dotson appealed, and the defendant surety company gave an undertaking upon that appeal. The Appellate Division affirmed that judgment. Upon the entry of judgment of affirmance, the liability of the surety company to pay the amount of the judgment against Dotson to Milliken accrued; but Booth, suing Milliken, attached Milliken's claim against Dotson before judgment rendered therein, and Booth secured in his suit judgment against Milliken, but this judgment was reversed on appeal, and judgment upon said reversal was entered against Booth for costs and disbursements. By the entry of that affirmative judgment in favor of Milliken against Booth, the attachment obtained by Booth on Milliken's claim against Dotson was annulled.

Section 3343, subd. 12, of the Code of Civil Procedure, provides that:

" A warrant of attachment against property is said to be annulled when * * * a final judgment is rendered therein ...

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