McBride v. Illinois National Bank

Full title: DENNIS H. McBRIDE, Respondent, v . ILLINOIS NATIONAL BANK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 6, 1908

128 App. Div. 503 (N.Y. App. Div. 1908)

112 N.Y.S. 794

Opinion

November 6, 1908.

Delos McCurdy, for the appellant.

George D. Beattys, for the respondent.

McLAUGHLIN, J.:

The defendant is a national bank located and doing business in the State of Illinois. Upon the ground that it was a foreign corporation the plaintiff obtained a warrant of attachment, and by virtue thereof a levy was made upon certain property of the defendant in the county of New York. After issue had been joined and the matter sent to a referee to hear and determine, the defendant moved to vacate the attachment upon the ground that an attachment could not be issued against the property of the defendant — a national bank — not located in the State. The motion was denied and defendant appeals.

An attachment cannot be legally issued under the statutes of the United States (U.S.R.S. § 5242) against a national banking association prior to judgment by any State, county or municipal court. ( Van Reed v. People's Nat. Bank, 67 App. Div. 75; affd., 173 N.Y. 314; 198 U.S. 554; Raynor v. Pacific Nat. Bank, 93 N.Y. 371; Bank of Montreal v. Fidelity Nat. Bank, 112 id. 667; Pacific Nat. Bank v. Mixter, 124 U.S. 721.)

The attachment accomplished no purpose because it was not only issued without authority of, but contrary to law. The defendant had a right, notwithstanding issue had been joined, to move to vacate the same. Its motion could be made at any time before the attached property, or the proceeds thereof, had been applied to the payment of a judgment recovered in the action. (Code Civ. Proc. § 682.) The ground upon which the motion was made was sufficiently stated in the moving papers. It was that the "warrant of attachment was illegally issued against the property of the defendant, a national bank not located in this State;" in other words, it was upon the ground that the facts stated in the papers upon which the attachment was based afforded no ground for an attachment. Rule 37 of the General Rules of Practice, requiring the moving papers to specify the irregularities on which the motion was made has no application. ( Andrews v. Schofield, 27 App. Div. 90.)

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.