Opinion of the Court, per LANDON, J. Morris, 44 id. 138; Stone v. Sprague, 24 N. Y. 509; Lee v. Hunter, 1 Paige, 536.) Assuming that the plaintiff had an attachable interest in the land, then the complaint fails to state a cause of action, unless it should be held that the sheriff's sale of this equitable interest was of some force. (Code Civ. Pro. 1874; Bowe v. Arnold, 31 Hun, 256; Thurber v. Blanck, 50 N. Y. 80-86; Anthony v. Wood, 96 id. 160; Adee v. Bigler, 81 id. 349; Geary v. Geary, 63 id. 352; Adsit v. Butler, 87 id. 585.) It is submitted that the complaint is defective also in not stating facts showing that the warrant of attachment was duly granted. (Code Civ. Pro. § 532.) There being no answer interposed by the respondent, the appellant cannot claim that the complaint authorizes any judgment different from his prayer for relief. (Evans v. Burton, 5 N. Y. S. R. 216; Stevens v. Mayor, etc., 84 N. Y. 296; Kelly v. Downing, 42 id. 71.) LANDON, J. The question presented by the demurrer to the complaint is whether the interest of a defendant under a contract for the purchase of the land upon which he has made partial payments, and is in possession, and entitled to a conveyance of the land upon completing his payments, can be levied upon by virtue of an attachment duly issued in an action against him in the Supreme Court. We think it can. Section 644, Code C. P., provides that the sheriff must execute the warrant of attachment "by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses." This, in terms, provides for a levy upon real property, and admits of the distinction between the property itself and an interest in the property, and suggests that the authority to levy upon the real property of the defendant is no authority to levy upon the real property of another in which the defendant has only some interest less than a legal estate. But section 645 was added; it was a new provision, and declared that "The real property which may be levied upon Opinion of the Court, per LANDON, J. by virtue of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant." The interest of the defendant under this contract for the purchase of the land comprises the actual possession, the right of possession, and the right to acquire the right of property. It is a valuable interest, and is alienable. The question whether the interest of a person holding a contract for the purchase of land was bound by a judgment and could be sold upon execution, was, prior to the Revised Statutes, the subject of frequent and conflicting decisions. The Court of Errors, in 1819, in Bogert v. Perry (17 Johns. 351), held that it could not be, but the Supreme Court subsequently held that it could be, if the holder of the contract was in possession. (Jackson v. Scott, 18 Johns. 94; Jackson v. Parker, 9 Cow. 73.) The Revised Statutes provided that such an interest should not be bound by the docketing of any judgment or decree, nor sold by execution issued thereon. (1 R. S. m. p. 744, § 4.) The question, as we learn from the reviser's notes, was one of public policy, and in order to mitigate the injustice of the rule adopted, the following sections provided that such an interest might be reached by means of an action in the nature of a creditor's bill. These provisions are substantially re-enacted in sections 1253, 1874, 1875 of the Code of Civil Procedure; the corresponding provisions of the Revised Statutes were repealed by chapter 245, Laws of 1880. Section 1253 provides that "the interest of a person holding a contract for the purchase of real property, is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment." It is thence argued by the defendant that the interest in question cannot be attached. But the argument is untenable if this section and section 645 are reconcilable one with the other. It does not necessarily follow that a provision as to the effect of a judgment and execution in the absence of an attachment, Opinion of the Court, per LANDON, J. controls other provisions as to their effect when aided by an attachment. Section 1370 prescribes the requisites of an execution where a warrant of attachment issued in the action has been levied by the sheriff. Section 708, subdiv. 2, prescribes the duty of the sheriff to whom such an execution is issued. He does not re-levy upon any of the attached property, the execution simply authorizes him to sell it. There are valid reasons why an attachment should reach the interest of a holder of a contract for the purchase of land. He may be a non-resident and never come within the state, so that personal service can be made upon him. In such case the personal judgment which must precede a judgment creditor's action cannot be obtained. But if his interest can be seized upon attachment, jurisdiction of that interest can be obtained and it can be disposed of to satisfy the domestic creditor. (Code C. P. § 707.) The reasons which withdraw the interest in question from the binding force of a judg ment and execution are technical, and the relaxation of the rule in the case of attachments seems to be in the interest of substantial justice. The letter of section 645 permits this attachment; other provisions show the policy of the law to be to extend the scope of this remedy; it can scarcely be doubted that when the framers of section 645 employed the words " any interest in real property" to indicate what was attachable, that this peculiar interest which had engaged the attention of the courts and legislature was considered; and if we concede that it was not, it would still remain to be held that if it had been considered the language of the section would have been different. It was held in Wright v. Douglass (2 N. Y. 376), in reference to the provision for the attachment "of all the estate real and personal of such corporation," that "the statute in terms applies to an equitable as well as a legal interest in lands." Section 645 does not appear to be less comprehensive, and we see no reason why we should narrow its scope by construction. There is a provision in the contract that the vendee will not assign the same without the written consent of the vendors; Statement of case. this provision concedes the alienable quality of the interest and provides by the personal covenant of the vendee against it. Such a covenant is not broken where the transfer is by the operation of a judgment. (Jackson v. Silvernail, 15 Johns. 278; Jackson v. Corliss, 7 id. 531; Smith v. Putnam, 3 Pick. 221.) The defendant has not assigned. (Roosevelt v. Hopkins, 33 N. Y. 81.) The judgment of the General Term should be reversed, with costs, and the interlocutory judgment of the Special Term affirmed, with costs of the General Term. All concur, except HAIGHT and BROWN, JJ., dissenting. 130 488 155 355 130 488 159 425 130 488 162 583 130 488 169 1310 EMORY J. BISHOP, Respondent, v. AGRICULTURAL INSURANCE A party to a contract, containing a provision that it shall not be modified A policy of fire insurance issued by defendant contained a clause that in case of disagreement as to amount of loss, the same shall be ascertained by two appraisers, the insured and defendant each selecting one, who were to select "a competent and disinterested umpire." The policy also contained a condition requiring proofs of loss to be furnished within sixty days after the fire, also a provision that the company should not be held to have waived any provision or condition of the policy or the forfeiture by any act, requirement or proceeding on its part relating to an appraisal. In an action upon the policy it appeared that the property insured was destroyed by fire October 15, 1887. Defendant was noti fied, and on October twenty-first its general agent and adjuster called on plaintiff; they not agreeing as to the amount of loss, entered into a written agreement appointing appraisers; the agent at the time stated to plaintiff that proofs of the loss need not be furnished as the damages would soon be settled. On November twenty-eighth the appraiser appointed by plaintiff declined to act. On December twenty-second plaintiff telegraphed L., the appraiser appointed by defendant, that he Statement of case. had secured another appraiser. L. appointed December thirtieth for making an appraisal. At that date the name of N., the new appraiser, was inserted in the agreement by L. The two appraisers failed to agree, and G. as the jury found refused to agree upon a disinterested umpire." Held, that the condition as to proofs of loss was waived; and that plaintiff was entitled to recover. (Argued December 21, 1891; decided January 20, 1892.) APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made March 25, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. This was an action upon a policy of insurance issued by the defendant to plaintiff upon his barn and contents. October 15, 1887, the plaintiff's barn and its contents were destroyed by fire, at which time the property was insured by the defendant for $3,100, under a policy known as "Standard Fire Insurance Policy of the State of New York." October seventeenth, the plaintiff gave personal notice of the loss to Samuel E. Clark, defendant's local agent, who effected the insurance, and requested him to inform the defend. ant of the fire, which he agreed to do, and immediately did. On the twenty-first of that month, Addice E. Dewey, defendant's general agent and adjuster, called on the plaintiff pursuant to the notice, and had an interview about settling the loss. The plaintiff testified, and in this he was not disputed, that the liability of the defendant was not denied, the only controversy being over the value of the property destroyed, which it was agreed should be appraised pursuant to the following provision in the policy: "In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the assured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the SICKELS-VOL. LXXXV. 62 |