[Copyrighted Material Omitted]
APPEAL by the defendants, the Bank of Montreal and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of February, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants' demurrers to the complaint.
John A. Garver, for the appellants.
Frederick Seymour, for the respondent.
The defendants, Bank of Montreal and United States Banking Company, separately demurred to the complaint upon the grounds: (1) That the court did not have jurisdiction of the subject-matter of the action; and (2) that the complaint did not state facts sufficient to constitute a cause of action. The demurrers were overruled and each appeals.
The complaint, in substance, charges that on the 8th of July, 1910, plaintiff recovered two judgments against the United States Banking Company, amounting to between $47,000 and $48,000, and on the following day executions were issued thereon to the sheriff of the county of New York and the same are still outstanding; that on April 13, 1910, the Bank of Montreal entered a judgment by default against the United States Banking Company for $215,000, and on the same day issued an execution thereon to the sheriff in an action in which the summons was personally served on the defendant and in which an attachment was issued on the 14th of February, 1910; that under the attachment issued in that action the sheriff levied upon a debt of $208,000, owing to the United States Banking Company, and when this plaintiff's warrant of attachment was issued the sheriff had in his possession the proceeds of the debt; that under the plaintiff's writs of
attachment, and after the issuance of execution by the Bank of Montreal upon its judgment, the sheriff levied upon and collected another debt owing to the United States Banking Company in the sum of $19,000, which he refused to apply towards the payment of plaintiff's judgments because the same were claimed by the Bank of Montreal; that the attachment, judgment and execution of the Bank of Montreal are void and of no effect and were made, issued and filed with the intent and for the purpose of hindering, delaying and defrauding the creditors of the defendant, the United States Banking Company, which intent was participated in by the Bank of Montreal; that the court acquired no jurisdiction in that action to issue the attachment; that the judgment and execution were void for want of jurisdiction because both the plaintiff and defendant were foreign corporations and the action was not brought to recover damages for the breach of a contract made within the State of New York or relating to property situate within the State at the time of the making thereof, but that the same was brought upon a bill of exchange made and delivered outside of the State, where the cause of action arose; that the Bank of Montreal wrongfully insists that its attachment, judgment and execution are valid and constitute a prior lien upon the funds referred to; that for that reason the sheriff has refused to pay plaintiff's execution out of the property in his hands and threatens to apply the whole thereof to the payment of the judgment of the Bank of Montreal; that the attachment, judgment and execution constitute an equitable obstruction to the enforcement of plaintiff's executions; and that the United States Banking Company has failed to take any steps to vacate or annul the same of record, but by collusion and agreement with the Bank of Montreal is conspiring to have the same sustained and such money applied to the payment of the claim of the Bank of Montreal in pursuance of an agreement by which the money now held by the sheriff shall be used and applied for the benefit of the United States Banking Company in procuring its reorganization. Then follows allegations to the effect that the Bank of Montreal took possession of certain securities of the United States Banking Company which it still retains and has in its possession, or has
disposed of for its own account; that by reason of that fact there existed in favor of the United States Banking Company against the Bank of Montreal--at the time the latter procured its attachment, brought its action and entered judgment--various counterclaims which, by reason of the arrangement and agreement before stated were not interposed or pleaded. The judgment demanded, among other relief, is that the attachment, judgment and execution of the Bank of Montreal be declared void, and that this plaintiff be decreed to have a prior lien upon all the funds now held by the sheriff.
I am of the opinion the demurrers should have been sustained, for the reason that the complaint does not state facts sufficient to constitute a cause of action. The cause of action attempted to be set out is mainly predicated upon the fact that the court did not have jurisdiction of the subject-matter of the action brought by the Bank of Montreal against the United States Banking Company. The court had jurisdiction because the instrument sued on was that kind of a bill of exchange which is drawn on a bank, and if payable on demand was a check. (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 321.) It was payable on demand unless there was a specific date of payment mentioned. (Id. § 26.) It is not alleged in the complaint that there was a specific date of payment, and, therefore, it must be assumed it was payable on demand. It was drawn on a New York bank. It was not paid when presented. When payment was refused a cause of action arose in the ...