Fishman v. Sanders, 15 N.Y.2d 269 (1965)
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When a resident of the state is served by publication after an attachment of property, the resulting judgment is a personal judgment, not limited to the value of the attached property, provided the statutory requirements for service by publication are met.
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Summary
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Plaintiffs obtained a $40,000 judgment against the defendant for personal injuries resulting from the defendant’s negligent driving. Service was effectuated by publication after attaching $22.70 of the defendant’s wages. The defendant’s insurer, appearing specially, moved to vacate the judgment, arguing it should be limited to the attached property (in rem). The lower courts agreed. The New York Court of Appeals reversed, holding that because the defendant was a resident of New York, and service by publication was proper, the judgment was a personal judgment enforceable against all of the defendant’s assets, not just the attached wages. The attachment served to provide notice, not to limit the scope of the judgment.
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Facts
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On May 8, 1959, the defendant, a resident of Westchester County, New York, negligently caused a car accident injuring the plaintiffs.r
A warrant was issued for his arrest on reckless driving charges, but he could not be located.r
On June 14, 1961, an attempted service on the Secretary of State and mailing to the defendant was vacated because the defendant no longer resided at the address where the summons was mailed.r
On February 8, 1962, the Sheriff attached $22.70 of the defendant’s wages.r
On February 16, 1962, an order was issued authorizing service by publication because the defendant was a resident who could not be found and was avoiding service.r
On December 17, 1962, a levy on the defendant’s insurance policy was vacated because the Sheriff had not taken possession of the policy.r
On April 10, 1963, after the defendant failed to appear, damages were assessed at $40,000.r
On April 16, 1963, judgment was entered against the defendant for $40,835.87.r
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Procedural History
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The plaintiffs initially obtained a judgment against the defendant in the trial court.r
The defendant’s insurer, appearing specially, moved to vacate the judgment insofar as it was a personal judgment, arguing it should be an in rem judgment only, collectible from the attached wages.r
The trial court granted the motion.r
The Appellate Division affirmed.r
The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.r
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Issue(s)
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Whether, under the former Civil Practice Act, service by publication on a New York resident who is avoiding personal service, after an attachment of property, results in a personal judgment enforceable against all of the resident’s assets or only a judgment in rem limited to the attached property.
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Holding
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Yes, because the applicable statute (former Civil Practice Act § 645(2)) authorized collection of a judgment out of any personal or real property of a debtor who was a resident served by attachment and publication. The attachment requirement was to ensure notice, not to limit the judgment’s scope.
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Court’s Reasoning
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The Court of Appeals reasoned that the lower court’s interpretation was incorrect because it misread the applicable statute, Civil Practice Act § 645. The statute differentiated between residents and non-residents regarding execution of judgments after service by publication. Subdivision 1 applied to non-residents, limiting recovery to attached property. Subdivision 2, applicable to residents, allowed collection from any personal or real property. The court emphasized that the attachment requirement for service by publication on a resident was to provide a form of substituted service