Fishman v. Sanders

In a negligence action, commenced by attachment of defendant’s property and service of process by publication, and in which a default judgment had been entered in plaintiffs’ favor against the defendant in personam, plaintiffs appeal from an order of the Supreme Court, Westchester County, dated October 7, 1963, which granted a motion by the defendant (appearing specially) to vacate said judgment insofar as it was against him personally and declared said judgment to he one in rem and not in personam. Order affirmed, without costs. The statutory requirement of levy under a warrant of attachment serves, even as to an absent resident, to limit satisfaction of the judgment to the attached property, as in the case of a nonresident. Otherwise there would be no reason for the attachment as a prerequisite to an order for service by publication. [For prior appeals, see 13 A D 2d 993 and 18 A D 2d 689.] Beldock, P. J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.