R 6212.Motion papers; undertaking; filing; demand; damages.

Subd (a) of this rule is derived from CPA § 816 and the first paragraph of § 903. The remainder of former § 903 appears in § 6201. Throughout the new CPLR, the words “motion” or “petition” are used in place of the former word “application.” See notes to § 6201. The motion for an order of attachment is made ex parte. See § 6211. The last phrase in the first sentence of former § 903, provided that the plaintiff must show “if the action is to recover damages for breach of contract, that the plaintiff is entitled to recover a stated sum, over and above all counterclaims known to him.” Prior to 1866, §§ 227 and 229 of the Code of Civil Procedure authorized attachment only in contract actions. In 1866, the remedy was extended to include actions for conversion; in 1877, it was further extended to other tort actions and the quoted language was inserted into § 903 (then § 636 of the Code of Civil Procedure). See Code Civ Proc §§ 635–712, preliminary note (Throop ed 1880). The quoted language was apparently limited to contract actions because, at the time of its enactment, the permissible scope of contract counterclaims was far broader than the scope of other counterclaims. Originally, careful distinctions were made between counterclaims, recoupments and setoffs. These distinctions are discussed in Boston Mills v Eull, 6 Abb Pr (ns) 319 (NY Super Ct 1869). The Field Code, however, embraced all three under the single designation of counterclaim. See Pattison v Richards, 22 Barb 143 (NY Sup Ct 1856). Nevertheless, the two subdivisions of § 150 of the Field Code authorized different specie of counterclaims: under subd 1, a counterclaim could be set up in any action if it arose from the same contract or transaction or was connected with the subject matter of the principal action; under subd 2, any contract counterclaim could be set up in a contract action. See Andrews v Artisan’s Bank, 26 NY 298 (1863); Parsons v Sutton, 66 NY 92 (1876). This distinction was continued when the revisions of 1877 retained § 150 of the Field Code as § 501 of the Code of Civil Procedure. Under CPA § 266, however, the distinction was abolished. See also § 3019(a). It is therefore no longer necessary to distinguish between counterclaims in contract actions, and other counterclaims. Moreover, requiring the plaintiff to specify the counterclaims known to him in any case is of doubtful utility. The plaintiff need specify only counterclaims which he “is willing to concede as just.” See Bard-Parker Co. v Dictograph Products, Inc. 258 App Div 638, 640, 17 NYS2d 588, 590–91 (1st Dept 1940). Furthermore, under § 6223, an attachment may be vacated or modified upon a showing by the defendant that it is unnecessary to the security of the plaintiff, either because of the existence of valid counterclaims or otherwise. Accordingly, the quoted phrase of former § 903 has been omitted.

Subd (b) of this rule is derived from former § 907. Cf. CPA § 819. Inasmuch as former § 904, authorizing attachment in peculation cases, has been deleted (see notes to § 6201), former § 908, which provided that no security be given in such cases, has also been deleted. Cf. CPA §§ 162, 820. CPA § 908 apparently applied only to the undertaking required by former § 907. Cf. Hodson v Bialostozkay, 38 NYS2d 226 (Sup Ct 1942). The two hundred fifty dollar minimum of former § 907 has been retained. The motion provided for in § 2508 will permit application for an increased indemnity. The motion may be made by the sheriff, a garnishee or any person having an interest in the property levied upon. It is derived from the motion to increase security, formerly included in § 948, which is expanded by the last part of the last sentence of former § 907. The new provision is broader than former provisions in that it permits the court to require a change in both the kind and amount of security. Cf. CPA §§ 151, 152. According to the provisions of former § 949, notice of a motion to increase security might have been dispensed with by the judge if the motion was made on the original papers. While § 2508 requires notice to all parties, a judge may specify the manner of notifying parties in an unusual case. See rule 2214(d). The condition of the undertaking has been changed from the language of former § 907 “if the warrant is vacated” to “if it is finally decided that the plaintiff was not entitled to attach the defendant’s property.” The latter language is adopted from former § 835, which dealt with civil arrest, in order to make it clear that the undertaking is not to be used to pay the defendant if an attachment is vacated for merely technical defects. Nor should the undertaking be applied where, under § 6223, an attachment, which the plaintiff was originally entitled to, is vacated because it is no longer necessary. The undertaking to the sheriff provided for in the last clause of the first sentence of this subdivision is based upon a suggestion made in McCloskey v Bril, 286 App Div 143, 142 NYS2d 5 (1st Dept 1955), affd without opinion, 1 NYS2d 755, 135 NE2d 53 (1956). The Appellate Division in the McCloskey case, in unanimously affirming a judgment holding an attorney personally liable for sheriff’s fees, added that “it would seem therefore that if an attorney in a situation such as this is to be protected, legislative action would be required. Perhaps the undertaking of the attachment plaintiff may, by statute, be extended to assure payment to the sheriff of any fees or charges to which he may become entitled, as well as to indemnify the attachment defendant.” Id. at 145, 142 NYS2d at 7. While the Court of Appeals affirmed the Appellate Division’s decision, despite an argument that the rule of personal liability for attorneys be changed, its decision must be regarded as determined by long-established and definitive precedent. As early as 1810, attorneys were held liable, on a theory of implied contract, for sheriff’s fees. See Adams v Hopkins, 5 Johns 252 (NY Sup Ct 1810) (execution fees). This exception to the general rule that an agent of a disclosed principal is not personally liable was justified in the Adams case as based upon the “general practice of looking to the attorney [which] repels every presumption of credit being extended to the client.” Id. at 255. It has also been stated that “[n]o practical injustice results,” since attorneys act “in view of the liability they incur.” Campbell v Cothran, 56 NY 279, 281 (1874) (execution fees). On the other hand, it has been recognized that the rule is harsh, since, from the very nature of the business done, the sheriff is aware of the principal and that the attorney acts only in his capacity as attorney. See, e.g., Judson v Gray, 11 NY 408, 412 (1854) (“the rule is in conflict with principle and the whole current of authority elsewhere on the subject”); cf. Preston v Preston, 1 Dougl 292, 293 (Mich Sup Ct 1844). Indeed, in Van Kirk v Sedgewick, 87 NY 265 (1881), an attorney was held not to be liable for execution fees unless he or his client prevented the sheriff from enforcing the execution. While the sheriff ordinarily receives his fees in advance, CPA § 1558(22) authorized poundage fees upon property levied upon where the attachment was vacated or set aside. See McCloskey v Bril, supra. Inasmuch as the sheriff is protected by the undertaking in this subdivision (cf. Adams v Hopkins, supra at 254–55), the personal liability of the attorney has been abolished by the second sentence. Moreover, the sheriff may seek further security under § 2508.

The first sentence of subd (c) of this rule is derived from the first sentence of CPA § 906. The language has been substantially simplified but no change in meaning is intended. Since the former “warrant” has been designated an “order” it is filed and copies of it are served. See rule 2220. Pursuant to rules 2102 and 2220, the papers are filed with the clerk of the court in which the action is pending or will be brought. The second sentence of the subdivision changes the former rule, which was contained in the second sentence of § 906, and in RCP 84. The opening phrase of the second sentence of the subd, however, is in accord with the second paragraph of former § 906. An extension may be granted either before or after the original time has expired. Although no specific filing requirement is made for arrest or injunction, it is necessary for attachment since a person interested in property levied upon may not be one who is served with the papers. The last phrase has been added to protect a garnishee who relied upon an invalid order.

Subd (d) of this rule is derived from the last two paragraphs of CPA § 906. The penalty provisions of that section were discretionary. Since a court may make any order that justice requires upon the motion of a party who has been prejudiced by a failure to comply with the rules, deletion of the penalty provisions is not intended to change the law. The papers upon which the order was granted include those set forth in subds (a) and (b); papers upon which the levy was made may also include a notice if one is served under § 6214(b).

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1977, ch 15, eff Sept 1, 1977; L 1977, ch 860, § 5, eff Sept, 1977.