APPEALS (1) by defendant from an order of the Supreme Court at Special Term (COHALAN, J.), entered November 27, 1953, in New York County, which denied a motion by defendant for summary judgment dismissing the complaint under rule 113 of the Rules of Civil Practice, and (2) by plaintiffs from an order of said court, entered on said date in said county, which denied a cross motion by plaintiffs for summary judgment striking out defendant's answer under rule 113 of the Rules of Civil Practice.
Rene Loeb of counsel (Daniel Scheyer and Leonard Wacksman with him on the brief; Rene Loeb, attorney), for appellants-respondents.
A. Donald MacKinnon of counsel (Janet P. Kane with him on the brief; Milbank, Tweed, Hope & Hadley, attorneys), for respondent-appellant.
This action is one in aid of attachment under article 55 of the New York Civil Practice Act. Both sides moved for summary judgment. There is no dispute as to the essential facts, but Special Term felt that the questions relating to the legal effect of the documents involved and of a certain judgment of a Pennsylvania court should await trial.
We find no triable issue. There are three translations presented of an important document (a deed of assignment), but they vary little. We find that even if we accept the translation proffered by plaintiff, defendant is entitled to prevail on the
legal issues that are determinative of the rights of the parties.
Of course, the essential issue in an action in aid of attachment is whether defendant had property of the attachment debtor, subject to levy on the date of the attachment.
Defendant is a New York bank. Concededly, on October 17, 1952, when the levy was attempted, it had on deposit approximately $25,500 in a certain escrow account. The disputed question is whether the attachment debtor, one Richard S. Giramberk, a Turkish national, had an attachable interest in the escrow fund.
The escrow agreement was entered into between three persons: plaintiff, Combined Raw Materials, Inc., a New York corporation (hereinafter referred to as Combined); Turkiye Is Bankasi A. S. of Istanbul (hereinafter referred to as the Turkish Bank); and Giramberk. It was accepted by defendant.
Before the making of the escrow agreement, Combined had brought an action in assumpsit against Giramberk in the Court of Common Pleas in Philadelphia County, Pennsylvania, to recover certain damages for breach of warranty and breach of contract. Apparently, the action was based on the deficiencies in weight and yield of several parcels of carpet wool sold to Combined by Giramberk. Plaintiff had attempted to get jurisdiction in that action by writ of foreign attachment on twenty-five tons of tannery wool shipped later by Giramberk to Philadelphia via American Export Lines on the S.S. Exemplar. The tannery wool was on a pier, but no custom entry had been made, nor had the property been appraised or the custom duties determined or secured. After attempted levy, the tannery wool was placed in customs storage, where it was damaged by fire. It became subject to a claim of the Turkish Bank as well as the parties to the attachment action. All parties stipulated to sell the tannery wool and substitute the net proceeds of sale, plus the proceeds of certain insurance payments. Expenses of sale and custom charges were first paid, and a balance of $25,650.93, less bank charges of $128.50, was made subject to the escrow agreement of October 1, 1951, accepted by defendant and reading as follows:
WHEREAS, Turkiye Is Bankasi A.S., a banking corporation organized under the laws of Turkey, claims an interest in said shipment;
WHEREAS, Combined Raw Materials, Inc., Richard S. Giramberk and Turkiye Is Bankasi A. S., acting through the undersigned as their respective attorneys, have agreed by letter agreement dated October 1, 1951 * * * that said shipment be sold and that the net proceeds thereof, after payment of The American Export Lines, Inc.'s charges, all ...