Davidson v. Seligman

By the Court.

The complaint alleges that the plaintiff, as sheriff, under smidry attachments, levied upon a sum of money in the hands of the defendant, and proceeds to state the manner of the levy. It also states that the money was the property of the attachment debtor. It does not appear that these moneys are equitable assets, as nothing in the complaint shows that the money was not in coin or bank bills, upon which an actual levy might be made. If the property of the assignor were a chattel, and it had been fraudulently assigned to an assignee, who had left it with the defendant, the sheriff might levy on the chattel, proving the assignment to have been fraudulent as to the attachment creditor. There is nothing in the allegation as to the alleged fraudulent assignments which tend to show that the money levied upon was not in the same condition that it was in when in possession of the assignor. Such allegations may have been competently treated by the judge below, as surplusage, which did not injure the defendants. They, indeed, gave a little more light as to plaintiff’s claimed cause of action, than would have been given by the allega*51tions that the sheriff levied upon property belonging to the debtor, in the hands of the defendants. Under this state of facts, the judge’s decision, in substance, that the defendants were not aggrieved by the matter in the complaint, that the motion aimed at, must be sustained.

Order affirmed, with $10 costs.

Van Vorst and Freedman, JJ., concurred.