
    Oliver M. Arkenburgh, Respondent, v. Robert H. Arkenburgh, Appellant.
    First Department,
    July 12, 1906.
    Execution against a non-resident defendant’s interest in an estate — when sheriff may sell judgment in aid of attachment, together with defendant’s unliquidated interest in estate — Code of Civil Procedure, section 708, construed.
    Subdivision 1 of section 708 of the Code of Civil Procedure, providing that when an execution is issued against property in an action in which a warrant of attachment" has been levied, the sheriff must pay over to the plaintiff any debts or things in action attached or sold by him, does not authorize a sale by the sheriff of an unliquidated claim of the defendant against his father’s estate.
    When the extent of a defendant’s interest in his father’s estate is unliquidated and cannot be ascertained until an accounting by the executor, a sheriff bringing an action in aid of an attachment under section 655 of the Code of Civil Procedure cannot have such unliquidated claim applied on the execution. He can only reach that part 'of the defendant’s interest in the estate which has • become fixed.
    But when in an action against a non-resident served by publication the plaintiff has, in order to obtain jurisdiction, levied an attachment upon the defendant’s interest in his father’s estate and thereafter the sheriff has brought a suit in aid of the attachment to recover the amount due from the estate, but .has been unable to enforce the judgment in said latter action, the lien of the attachment covers the judgment recovered in aid thereof, and the sheriff by virtue of subdivision 5 of section 708 of the Code of Civil Procedure is entitled 1o sell both the judgment recovered by him and the defendant’s unliquidated claim ' against the estate.under the original execution.
    Ingraham, J., dissented.
    Appeal by the defendant, Robert H. Arkenbürgh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of tlie county of New York on the 19th day of April, 1906, denying the defendant’s motion to vacate upon the papers upon which it was granted an order made herein pursuant to the provisions of section 708 of the Code of Civil Procedure directing the sheriff of the county of New York “ to sell under the execution that has issued herein and at public auction the remaining portion of the personal property attached herein. * * * TJpon the sale of such property the judgment obtained in an action in the Supreme Court, New York County, wherein Thomas J. Dunn, as sheriff, etc., were plaintiffs, and the excutors of the estate of Robert H. Arkenburgh, deceased, were defendants, entered in the office of the clerk of the county of New York, on May 4th, 1899, shall be sold, together with the items contained in said judgment, which represented moneys heretofore found due to Robert H. Arkenburgh, as legatee or otherwise of the estate of Robert H. Arkenburgh, deceased, by the- Surrogate’s Court of Rockland county, and that all of the above-mentioned property shall be sold as one item and the interest of the said Robert H. Arkenburgh, as legatee or otherwise, in the estate of Robert H. Arkenburgh, deceased, over and above the items above mentioned shall be sold separately and as one item.”
    The plaintiff showed by his petition upon which the order was granted all the proceedings in the action extending over a period of about thirteen years, and among others that on the 2d day of January, 1893, a warrant of attachment was issued herein and delivered to the sheriff of the county of Mew York, who levied under it on certain real estate and personal property in said county belonging to the defendant; that the personal property so levied on consisted of the defendant’s interest as legatee or otherwise in the estate of Robert H. Arlcenburgh, deceased, and that the attachment was made by serving the writ and notice on Eliza J. Arkenburgh, executrix of the estate, who is also mother to the defendant, and she returned a certificate stating that the defendant’s interest in the estate could not be determined until an accounting of the estate could be had; that the real estate levied upon consisted of property situate on Sixty-seventh street in the city of New York; that the defendant did not appear in the action, but demanded notice of any reference or writ of inquiry that might be granted; that the plaintiff duly recovered a judgment in the action for §10,137.91, and execution thereon was duly issued on the 5th day of August, 1896, to the sheriff of the county of Mew York “directing him to satisfy" said judgment out of the personal property attached and if that should be insufficient, then out of the real property so attached; ” that the execution had not been returned and that sufficient moneys had not been collected to pay it. The petition further shows that the sheriff appeared in a proceeding for the judicial settlement of the Arkenburgh estate by the surrogate of Rockland county on the 21st day of December, 1893, for the purpose of reducing to possession the attached personal property of the defendant and requested that the surrogate direct that the moneys found to be due to said Robert H. Arkenburgli, the defendant, be paid to him to apply on the execution; that the surrogate found that the sum of $2,347.26 was due to the defendant from the estate on the 30th day of December, 1895, but refused to decree that it be paid to the sheriff, upon the ground that he had no jurisdiction since the executrix claimed it under an assignment from defendant and in the decree advised the sheriff to seek a court of competent jurisdiction to decide whether the interest of said Robert H. Arkenburgli was payable to the sheriff under the attachment, or to the executrix pursuant to the assignment, and that the executrix refused to pay over the amount thus found due to the defendant. The decree of the surrogate recited that the share and interest of Robert H. Arkenburgli was claimed by the sheriff under the warrant of attachment and by Eliza J. Arkenburgli, executrix, under an assignment, and directed that the amount due be retained by the executors until the rights of the parties entitled to the same “ shall have been determined by a court of competent jurisdiction.” The surrogate held, upon the authority of Matter of Redfield (71 Hun, 344) that he was without jurisdiction to determine these conflicting claims, and this ruling was sustained on appeal. (Matter of Arkenburgh, 13 Misc. Rep. 757; 38 App. Div. 475.)
    The petition further shows that thereafter and on the 11th day of [November, 1898, the plaintiff herein and the sheriff together instituted an action in aid of said attachment, pursuant to sections 655 and 677 of the Code of Civil Procedure, against the executors of the Arkenburgli estate, which action finally resulted in a judgment in favor of the sheriff on the 4tli day of May, 1899, for the sum of $5,269.56, the amount then due to the defendant from the estate, which judgment was affirmed by the Appellate Division (Dunn v. Arkenburgh, 48 App. Div. 521), and by the Court of Appeals (165 N. Y. 669); that in April, 1900, leave to issue execution on that judgment was obtained from the surrogate of Rock-land county and that execution was issued to the coroner of the city and county of Hew York where the funds of the estate were on deposit; that on the 5th day of May, 1900, the sheriff instituted proceedings supplementary to tlie last execution, and on the seventeenth day of the same month lie-secured an order — presumably from the Supreme Court, although the fact is not stated — permitting the Fanners’ Loan and Trust Company to pay from the moneys on hand belonging to the estate sufficient to satisfy the execution, but that on an appeal therefrom the executrix obtained a stay of proceedings from July, 1900, until November, 1904; that .immediately after, the expiration of the stay the sheriff procured the appointment of a receiver in the proceedings supplementary to execution, and an action was begun by the receiver against the Farmers’ Loan and Trust Company to recover the amount which i was permitted by the order to pay over; that in the last-mentioned action the executors of the estate were substituted as defendants, and a demurrer interposed by them to the supplemental complaint was overruled at Special Term, but on appeal the interlocutory judgment was reversed and final judgment was directed, dismissing the complaint on the ground that there was no authority to reach the funds of an estate by proceedings supplementary to execution (Jones v. Arkenburgh, 112 App. Div. 483).
    The petition further shows that prior to the proceedings herein outlined and on the 17th day of May, 1902, the surrogate of Noclcland county made an order directing the executor and executrix to join in paying the coroners of the county of New Fork sufficient moneys to satisfy the execution issued to them, but “ the said executrix refused to comply with said order, and the sheriff and plaintiff have been unable to enforce it.”
    Tire plaintiff further shows that unless he is permitted to sell and dispose of the judgment in aid of the attachment and the remaining claim of the defendant against the estate levied upon under the attachment, which is necessary before the real estate attached can be sold, he will lose the lien of his judgment which expires on the • 19tli day of May, 1906, and that his attachment will be valueless. The petitioner also presents the affidavit of the deputy sheriff, showing that he had had charge of the warrant of attachment and the execution heretofore issued herein and on information and belief “ that the sheriff has used due diligence ih endeavoring to collect the personal property described in the affidavit ” of the petitioner, “ but that none of the personal property levied upon has been collected and that all of said property is now uncollected,” and that the sources of his information and the grounds of his belief are the records in the sheriff’s office, the papers in the action, the affidavit of the petitioner, and all the records of the various actions and appeals therein. An affidavit of the present sheriff is also presented, tending tó show that he has exercised due diligence in endeavoring to collect the debts and other things in action attached; but his affidavit is made upon information and belief and the sources of his information and the grounds of his belief are substantially the same as those set forth in the affidavit of the deputy.
    
      Charles Edward Souther, for the appellant.
    
      Robert Forsyth Little, for the respondent.
   Laughlin, J.:

This litigation has occupied the attention of the court to a considerable extent for a long period. Every opportunity of making an application to tlie court and of appealing herein appears to have been embraced. . The defendant moved to vacate the order of publication and unsuccessfully contested the service through the Court of Appeals. (Arkenburgh v. Arkenburgh, 90 Hun, 608 ; affd., 148 N. Y. 756.) He then moved to vacate the judgment and set aside the execution, and appealed without avail from a denial_ of that motion. (Arkenburgh v. Arkenburgh, 14 App. Div. 367.) He also unsuccessfully contested the judgment recovered by the sheriff in aid of the attachment by appeal to this court and to the Court of Appeals. (Dunn v. Arkenburgh, 48 App. Div. 518; affd., 165 N. Y. 669.) He moved to vacate his default and appealed, without success, from the order denying it. (Matter of Arkenburgh, 69 App. Div. 618.) The plaintiff, in the course of the litigation, adopted the unknown and unauthorized practice of having a receiver of the trust funds in the hands of the executors of the estate of Bobert H. Arkenburgh, deceased, appointed, and an action brought by the receiver against the trust company in which the trust funds were on deposit, and on an appeal to this court the complaint was dismissed. (Jones v. Arkenburgh, 112 App. Div. 483.) It would seem as though the controversy between these parties might have been adjusted or finally determined long ago; and without resorting to the court and appeals to this extent.

This appeal presents the question as to whether the court was warranted in directing a sale of the judgment obtained in aid of the attachment and of the remaining claim of the defendant against the estate of his father, pursuant to the provisions of subdivision 5 of section 708 of the Code of Civil Procedure. The appellant claims that the attachment merged in the execution issued on the 5th day of August, 1896, on the original judgment, and that the lien of the attachment thereupon terminated. The case of Barton v. Palmer Co. (87 App. Div. 35) is cited as authority for this proposition. It is unnecessary to approve or disapprove the doctrine of that case to the effect that an action cannot be brought in aid of an attachment after the return of an execution wholly unsatisfied on the judgment recovered in the action, which appears to be inconsistent with the express provisions of subdivision 2 of section 655 of the Code of Civil Procedure, because in this case, while the lien of attachment may have been suspended by the judgment, or may have merged in the execution, the execution has not been returned and the lien still exists. In the case at bar, the action in aid of the attachment was, as already seen, sustained by this court and by the Court of Appeals. (Dunn v. Arkenburgh, supra.)

It is to be borne in mind that the defendant was a non-resident, served by publication, and that he did not appear generally in the action to give the court jurisdiction. -The sheriff was, therefore, confined in executing the execution to the property upon which the warrant of attachment was levied, for there was no jurisdiction to reach any other property of the defendant. (Code Civ. Proc. §§ 707, 1370.) The sheriff had no authority to sell the interest of the defendant in the estate of his father under the original execution without an order of the court as prescribed in subdivision 5 of section 708 of the Code of Civil Procedure. The powers and duties of the sheriff in satisfying an execution in favor of the plaintiff against property where a warrant of attachment has been levied are conferred and prescribed by section 708 of the Code of Civil Procedure, which provides as follows:

Where an' execution against property is issued upon a judgment for the plaintiff in an action in which a warrant of attachment has been levied, the sheriff must satisfy it, as follows :

1. He must pay over to the plaintiff all money attached by him, and tlie proceeds of all sales of perishable property, or of any vessel, or share or interest therein, or animal, sold by him, or of any debts or other things in action collected or sold by him; or so much thereof as is necessary to satisfy the judgment.
“2. If any balance remains due, he must sell, under the execution, the other personal property attached, or so much thereof as is necessary, including rights or shares in the stock of an association or corporation, or a bond or other instrument for the payment of money, executed and issued with the interest coupons annexed, if any, by a government, State, county, public officer, or municipal or other corporation, which is in terms negotiable or payable to the bearer or holder, the principal whereof is not then payable; but not including any other debt or thing in action. If the proceeds of that property are insufficient to satisfy the judgment, and the execution requires him to satisfy it out of any other personal property of the defendant, he must sell the personal property, upon which he has levied by virtue of the execution. If the proceeds of the personal property applicable to the execution are insufficient to satisfy the judgment, the sheriff must sell, under the execution, all the right; title and interest which the defendant had in the real property attached at the time when the notice was tiled, or at any time afterwards, before resorting to any other real property.
“ 3. If personal property attached, belonging to the defendant, has passed out of the hands' of the sheriff without having been sold or converted into money, and the attachment has not been discharged as to that property, he must, if practicable, regain possession thereof, and for that purpose he has all the authority .which he had to seize the same under the warrant. A person who wilfully con. ‘ ceals or withholds such property from him is liable to double damages, at the suit of the party aggrieved.
4. Until the judgment is paid he may collect the debts and other things in action attached, and- prosecute any undertaking which he has taken in the course of the proceedings, and apply the proceeds thereof to the payment of the judgment.
“ 5. At any time after levying the attachment, the court, upon the petition of the plaintiff, accompanied with an affidavit specifying fully all the proceedings of the sheriff, siqce the levy under the warrant, the property attached, and the disposition thereof; and the affidavit of the sheriff, showing that he has used diligence in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected; may direct the sheriff to sell the remaining portion, upon such terms, and in such-manner, as it thinks proper, híotice of the application must be given to the defendant’s attorney, if the defendant appeared in the action. If the summons was, not personally served on the defendant, and he did not appear, the court may make such order as to the service of notice as it thinks proper ; or may grant the application without notice.”

Subdivision 1 of this section should not be construed as authorizing the sale of an unliquidated claim, such as the defendant’s claim against his father’s estate appears to have been under the clause relating to the collection or sale of debts or other things in action by the sheriff. It prescribes the duty of the sheriff with respect to paying over moneys attached or collected or received by him, whether under that or the other subdivisions of the section or any other provisions of law. The meaning of its provisions is somewhat obscure. Per haps it authorizes the sale of a debt or thing in action for the full face value thereof, but it surely does not authorize a sale of unliquidated claims. This subdivision was taken from subdivision 1 of section 237 of the Code of Procedure, which subdivision clearly did not authorize a sale of a debt or thing in action ; and Commissioner Throop, in his notes, does not show that it was intended to change the law as it formerly existed. (Throop’s Code Civ. Proc. note to § 708.) If subdivision 1 authorized the sale of all debts and things in action, there would be no meaning to the provisions of subdivision 2, which preclude the sale of debts and things in action other than those specified therein; and there would be no necessity for an application to the court which the Legislature has deemed necessary and provided for in subdivision 5.

The nature of the defendant’s interest in his father’s estate is not disclosed, but it appears to have been assumed that it was an unliquidated claim. Its value probably could not be definitely ascertained until the final accounting of the executor; and until there was a decree of the Surrogate’s Court, adjudicating that there was a specific amount in the hands of the executors applicable to the payment thereof and directing them to pay it, no action or other proceeding would lie to obtain it. The sheriff was authorized by virtue of the provisions of section 655 of the Code of Civil Procedure, to maintain, as he did, an action in aid of the attachment to reach any part of the defendant’s interest that had become fixed; but as to any part of the claim that has not yet become payable, no action or proceeding can be maintained to have it applied on the execution, excepting by an application to the Surrogate’s Court at the proper time. The question is whether the sheriff must hold the execution and pursue that remedy, and perhaps in the meantime have the lien upon the real estate expire by limitation, or whether he should be permitted to sell the fixed claim established by the judgment in aid of the attachment and the remaining unliquidated claim, pursuant to the authority contained in subdivision 5 of section 708, herein quoted. Very likely he should be permitted to sell the unliquidated claim, but there is room for doubt as to the power of the court to authorize him to sell the judgment recovered in aid of the attachment, and as to the propriety of adopting that course, even though there be authority therefor. There is force in the contention that to the extent of that judgment, the lien of the attachment and execution no longer exists, and that the judgment having been recovered since the attachment was levied, could not have been levied upon under the warrant .of attachment; and that the defendant’s claim against his father’s estate levied upon under the warrant of attachment has been merged in the judgment in aid of the attachment to the extent that it was embraced in that recovery.

It is claimed that the moving papers do not show due diligence within the requirements of subdivision 5 of section 708 of the Code of Civil Procedure, in that a court of competent jurisdiction was not sought as directed by the surrogate. The surrogate ‘ correctly ruled that he had' no authority to determine the validity of the assignment of the defendant to his mother, and that he could not determine, as between,the sheriff and the assignee, who was entitled to the money found due from the estate to the defendant. (Code Civ. Proc. § 2743 ; Matter of Arkenburgh, 38 App. Div. 473; Matter of Randall, 152 N. Y. 508.) The plaintiff did seek a court of competent jurisdiction, when, together with the sheriff, he brought the action in aid of the attachment, wherein it was necessarily adjudicated that the attachment had priority over the assignment which was made subsequent to the levy under the warrant of attachment, and that judgment also necessarily determines the priority of the sheriff’s claim under the execution as to the balance of the defendant’s claim against the estate. It does not appear that any attempt was made to enforce the payment of the amount of that judgment by contempt proceedings. The judgment in effect conclusively determined that the amount thereof was in the hands of the executors, applicable to the payment of the defendant’s claim against the estate, and presently due and payable. If the trust company has paid the fund into court, it would seem that an order might have been obtained requiring the application thereof to the satisfaction of the judgment; and if it has not been paid into court, or cannot be reached by an order of this court, it would seem that payment might be enforced by contempt proceedings in the Surrogate’s Court. However, all efforts on the part of the plaintiff to enforce his judgment seem to have been thwarted by the defendant or his mother. If there was any disposition on the part of the defendant to have the judgment in aid of the attachment satisfied by the executors of his' father’s will and applied on the execution held by the sheriff under the judgment recovered in this action, it is manifest that it would have been satisfied long ago. If the judgment against the executors is collectible, the defendant should either see that it is paid, or protect his interest by seeing that it is sold for full value on a sale by the sheriff.

We think that the lien of the attachment should be held to cover the judgment recovered in aid thereof, and since the plaintiff has been unable to collect the claim of the defendant against his father’s estate, now represented by that judgment, he should, to avoid any further difficulty or obstacle that might arise by a sale of the remaining unliquidated claim, and of the real estate without knowing what, if anything, will be realized upon the judgment in aid of the attachment, be permitted to sfell both the judgment' and the remaining unliquidated claim:

It follows that the order should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., Patterson and Clarke, JJ., concurred; Ingraham, J., dissented.

Order affirmed, with ten dollars costs and disbursements.  