Burnett Riker.

September 30, 1887, $75; October 3, 1887, $500; October 8, 1887, $400. On October 15, 1887, the treasurer of said corporation received notice dated October 10, 1887, of an assignment of the defendant's interest in said contract to one James L. Riker, his son. On September 21, 1887, and thereafter, the treasurer of the said corporation made payments under said contract to said assignee. After the recovery of judgment and the issuing of execution thereon, the plaintiff and judgment creditor instituted proceedings in aid of execution, and made this motion therein.

On the motion, the corporation's attorney claimed that this was not the proper remedy; that the sheriff should have brought an action under section 655 of the Code of Civil Procedure, and that in any event the three particular payments admitted to have been made by the corporation to defendant, were moneys earned by him under the contract after the service of the attachment papers, and the actual assignment.

Plaintiff's attorney insisted that under section 648 of the Code, the attachment covered all money due and to grow due under said contract; that he should not be subjected to the costs and delay of an action, when a remedy by motion was authorized under section 2441 of the Code, and that the court had the power to grant the order asked for, under section 2446.

Henry C. De Witt, for plaintiff and motion.

Was a proper levy under the attachment made? The property levied upon was a debt due by St. George's Church to defendant, being a part of his interest under a contract made by him with it, by which he was to receive a large sum of money. (A.) Said church is a religious. corporation organized and existing under the laws of the State of New York, which provide that certain persons may incorporate, by electing two church-wardens and

Burnett v. Riker.

eight vestrymen . . . and that the church-wardens and vestrymen so elected, and their successors, with the rector, if there be one, shall form a vestry, and be trustees of such church, and form a body corporate. Rev. Stat. chap. XVIII. tit. 6, art. 1, § 1. (B.) The Code of Civil Procedure provides for a levy upon a cause of action arising upon contract. §648. It also provides in section 649 how property is to be attached, and under subdivision 3, which relates to the description of property sought to be attached herein (ie., personal property incapable of manual delivery), by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a "demand," with the person against whom it exists. (C.) § 431, subdivision 3, of the Code provides that service of a summons on a defendant, being a domestic corporation, be made by delivering a copy to the president or other head, the secretary or clerk, treasurer, or a director or managing agent. And there being no provision in the Code as to the service of a warrant of attachment on a domestic corporation, except in the case of a claim for an interest or share in the stock of the association or profits thereof, it must be assumed that service of a warrant of attachment on any proper officer of such corporation is sufficient. In the present case, both services of the warrant of attachment and notice were made on vestrymen of St. George's Church, and as such, trustees (or directors) thereof by virtue of the statute cited. The notice was in itself sufficient, as it specified the attachment of all moneys due the defendant in the possession or under the control of the corporation; not, as the officers served seemed to have assumed, under their personal control.

They were served with the warrant, &c., herein only as officers of the corporation; and, being intelligent men, must have known that they were so served (See Bills v. National Park Bank, 89 N. Y. 350: S. C., modified sub nom. Gibson v. National Park Bank, 98 Id. 87).

Burnett v. Riker.

The corporation is

Money due by St.

This proceeding is a proper one. bound by the acts of its officers. George's corporation to the defendant herein, more than sufficient to pay the judgment recovered, was properly attached while under its control (See O'Brien v. Mech. & Traders' Fire Ins. Co., 50, N. Y. 128). These officials have seen fit to pay the money so attached, to the defendant, in defiance of the mandate of the court, and have thereby brought themselves into contempt.

And being in that position the court has inherent power to order the money attached in the hands of the corporation, or so much thereof as may be sufficient to satisfy the judgment recovered herein, to be paid to the sheriff; as well as to punish such of its officials as have disobeyed the court's order.

George C. Blake, for St. George's Church, opposed.

LAWRENCE, J.-The attachment was served on the 16th of September--long before any notice was given by the assignee that he had any claim, and five days before the assignment is alleged to have been made.

Notwithstanding the attachment, the treasurer of the church paid, on September 30, $75; on October 3, $500, and on October 8, $500.

Notice of the alleged assignment was not served on the officers of the church until October 10, although the letter containing the notice is dated on the 3d.

I think I have the right to make this order under section 2446 of the Code; and as it does not appear that the officers of the church had either actual or constructive notiee of the alleged rights of the assignee at the time when they made the payments to the contractor, after service of the attachment, they will be protected by the order against any claim which may be made by the assignee.

If this view is correct, it is unnecessary to consider

Swift v. Wheeler.

the motion to punish the officers of the church for contempt.

The order to be entered on this decision will be settled on notice.

SWIFT, AS EXECUTOR, ETC., APPELLANT, v. WHEELER, RESPONDENT.

SUPREME COURT, FIFTH DEPARTMENT, GENERAL TERM, DECEMBER, 1887.

$$ 3268, 3269, 3271.

Security for costs—When application for should be made upon motion.

An application to require a plaintiff to give security for costs under section 3271 of the Code of Civil Procedure can only be made upon notice to the plaintiff, and an order therefor made without notice is irregular and should be set aside.

It seems, that an order requiring security for costs under sections 3268, 3269 of the Code of Civil Procedure may be made ex parte. Where an order to show cause why an order requiring security for costs should not be vacated recited that it appeared to the court that such order "was made without any notice to the plaintiff of the application therefor, and that there is no sufficient grounds for requiring the plaintiff to give security as therein required,"-Held, that it sufficiently specified the irregularity for which it was sought to vacate the order requiring security, viz., the non-service of notice of the motion therefor.

(Decided December 30, 1887.)

Appeal from an order of the Monroe county special term denying a motion to vacate an order requiring the plaintiff to give security for costs.

The action was brought by plaintiff as executrix, etc., of Mary E. Sawtelle, deceased, against the defendants to

Swift v. Wheeler.

recover $135, the alleged value of certain diamond jewelry claimed to have been taken by Charles Bell after the death of the testatrix, and pawned to the defendants. The answer of the defendant Wheeler was a general denial. Upon affidavits showing the insolveney of the estate, and the inability of the defendant Wheeler to collect a judgment for costs which he might obtain herein, the county court of Monroe, ex parte, on April 20, 1887, made an order under Code Civ. Pro. § 3271, requiring the plaintiff to give security for costs, and staying all proceedings on her part except to review or vacate the order, until the payment or filing and notice thereof, and the allowance of the undertaking, if any should be given. Said order and affidavit were served upon the plaintiff's attorney on April 20, 1887. The plaintiff thereafter, upon affidavits, moved to set aside said order requiring security for costs.

This motion was made upon an order to show cause, which recited that it appeared "to the court that an order made herein by this court April 20, 1887, was made without any notice to the plaintiff of the application therefor, and that there is no sufficient ground for requiring the plaintiff to give security as therein required." The motion was opposed upon the merits by said defendant Wheeler, upon affidavits in addition to these upon which. the order requiring security was founded. From that order plaintiff took this appeal.

Waldo G. Morse, for plaintiff-appellant.

The order requiring security for costs was improperly made without notice to the plaintiff. The application for such an order must be to the court. Code Civ. Pro. $ 3272. An application for an order is a motion. Code Civ. Pro. § 768. A motion shall be brought before the court on notice. Rule 37, Gen. Rules Practice. The only exceptions are orders to which the applicant is entitled of right, when the facts are made to appear. Is