
    Louis Straus et al., Resp’ts, v. The Chicago Glycerine Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Attachment—When issued.
    The presence of the person or thing within the state is indispensable to the power of the court to acquire jurisdiction over it by attachment. Following Plimpton v. Bigelow, 93 1ST. Y., 592.
    2. Same—When the property is within the state—Code Crv. Pro.» § 649.
    The plaintiff resided in New York, the defendant was a corporation created and existing unde • the laws of Illinois. The defendant was insured in a foreign company, having an office in New York, and also in Illinois. The defendant negotiated for and received his policy in the latter state. A loss had been sustained by fire affecting the properly insu ed by the policy and situated in Illinois. The plaintiff attempted to attach the indebtedness of said foreign insurance company to the defendant, by serving the atlachment papers on the agent of said foreign insurance company in New York. Held, that the indebtedness of the insurance company to the defendant was not property which defendant had within the state of New York; that it could not be attached under Code Civil Procedure, § 649.
    Appeal from an order denying a motion to set aside the service of an attachment.
    
      James Byrne, for app’lt; Henry W. Sackett, for resp’ts.
   Daniels, J.

—The plaintiffs reside and carry on business in the city of New York. The defendant is a corporation created by and existing under the laws of the state of Illinois. It was insured upon its property by a policy issued by the Commercial Union Insurance Company, Limited, of London, a corporation created and existing under the laws of the kingdom of Great Britain. A loss has been sustained by fire affecting the property insured by the policy, and situated in the city of Chicago, The insurance company had an agency for the transaction of its business in the city of New York, and the attachment which was issued in the action was served at the office of the insurance company, in the city of New York, by delivering a copy of it there with a notice that the indebtedness of the company to the defendant was thereby attached.

And a motion was made to set aside this service of the attachment, on the ground that the indebtedness could not in this manner be attached under the provisions of the Code of Civil Procedure. It will not be necessary to determine whether a lawful attachment of the indebtedness could be made under sub. 2 of § 649 of the Code of Civil Procedure, without taking actual possession of the policy itself. For this policy was not issued by the New York Agency, but the negotiations for it took place in the city of Chicago, and it was there delivered to and held by the defendant. The indebtedness, accordingly, was not property which the defendant had within this state, and under the construction given to the Code of Civil Procedure in Plimpton v. Bigelow (93 N. Y., 592), it could not be seized under this attachment. It is true that the service of the attachment in that case was attempted to be made upon shares of the defendant in the corporate stock of a company but that circumstance does not seem to render the decision then made inapplicable to this case. By the shares which the defendant held, he was entitled to a proportionate part of the earnings of the corporation and of its property upon its dissolution. While in the present case the defendant was entitled under the policy to the payment of so much money as would compensate it for the loss sustained by the destruction of its property by fire, so far as the policy covered such loss. .The property itself, in each case, has several attributes of similitude, rendering thedecision in the case referred to applicable to the service made of the attachment in this action.

A somewhat similar decision was made in Myer v. Liverpool, etc., Ins. Co. (40 Md., 595). But as that passed off on the liability to maintain an action for the recovery of the debt which it was the object to seize, the decision is not controlling over this case. Where an action may be here maintained to recover the debt owing by the foreign corporation as it certainly could be in this case, it has been held in other states that it may be seized by way of attachment, or process of garnishment. Barr v. King, 96 Penn., 485, National Bank, etc., v. Huntington, 129 Mass., 444; McAllister v. Penn. Ins. Co., 28 Mo., 214; H. and St. J. R. R. Co. v. Crane, 102 Ill., 249.

And other cases might undoubtedly be added sustaining the same point. In Willet v. Equitable Ins. Co. (10 Abb., 193), there was no agency of the company in this state. And the absence of that circumstance is sufficient to deprive the decision then made of its influence over the subject matter of this controversy. But it is not important to pursue the consideration of other cases since that of Plimpton v. Bigelow (supra), maintains the general proposition that the presence of the person, or thing, within the state is indispensable to the power of the court to acquire jurisdiction over it in this manner. The order should be reversed, together with the usual costs and disbursements, and the service of the attachment set aside.

Van Brunt, C. J., and Bartlett, J., concur.  