
    Alfred H. Avery and Willard J. Avery, as Surviving Partners of the Firm of A. H. Avery, Son & Company, Respondents, v. Frederick L. Avery, Appellant.
    Third Department,
    May 8, 1907.
    Attachment — action against héir to establish lien on lands — attachment vacated, ■>
    
    An action against ah heir to charge a debt of .the' decedent upon real estate is equitable in its nature and hot being an action for the recovery of money only an attachment is not authorized.
    Appeal by the defendant,"Frederick L. Avery, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 2d day of January, 1907, denying the defendant’s motion to vacate a warrant of attachment ‘theretofore granted herein.
    
      1V. H. Aníbal, for the-appellant.
    
      H. D. Wright, for the respondents.
   Sewell, J.:

This is an action to charge the real estate of which Charles A. Avery died seized with an indebtedness due to the plaintiffs.

Tire complaint alleges the making of a promissory note by Charles A. Avery; that the plaintiffs are the owners thereof; that $4,671.48 and interest from July 1, 1902, is due; that the defend- , ant is the sole heir at law and next of kin of the deceased and as such is entitled to an undivided one-eighteenth of the real estate described in the complaint; that more than three years have elapsed since letters of administration were granted, and that the decedent’s assets are not sufficient to pay the plaintiffs’ debts.

From the facts set forth in the complaint and the affidavit upon which the attachment was granted it is manifest that this is not an action for the recovery of money only, and, therefore, not one in. which an attachment might issue under the provisions of section 635 of the Code of Civil Procedure. The action is not to enforce but to acquire a lien upon the real property which descended to the defendant and to authorize its sale for the purpose of satisfying the debt. (Rogers v. Patterson, 79 Hun, 483.) It is an action in equity having the nature of a proceeding in rem insiich sense that when the land has not been aliened by the heir, the judgment must direct that the debt of the plaintiff be collected out of the real property. (Code Civ. Proc. § 1852; Hauselt v. Patterson, 124 N. Y. 356.)

In Wood v. Wood (26 Barb. 356), where the same relief was sought, the court said : “ The basis of the action is the debt which Jacob Wood, deceased, owed the plaintiff; but that is not the gist of it. It is not an action for the recovery of money only, although 'the ultimate object of it is to obtain money * * but it is an equitable action to reach certain real estate'which Jacob Wood, deceased, devised to the defendants, and to authorize its sale for the purpose of satisfying a debt .that the deceased owed the plaintiff. It is strictly an action in rein, for.no facts are set out in the complaint, and none- were established on the trial, to support a claim against the defendants personally. * * *' In other words, it is an action for equitable relief, of which the Snpreme Court had not jurisdiction prior to the'enactment of the Code.” . ' .

In Mortimer v. Chambers (63 Hun, 335) Mr. Justice Andrews, speaking of the case of Wood v. - Wood,, said : “ What is said by the learned judge about the nature of the -action in that case applies to the case at bar. The complaint does not ask for a personal judgment against-the defendants, and the only relief prayed for is-that the property described in the complaint shall be' sold and. tli'e debt of the plaintiff paid out of the proceeds.”

Since the amendment of the Code in 1866, which restricts by its-terms the cases in which attachments are allowable, to- actions aris- ■ ing on contract for the recovery of money only, it lias, been held that this - provisional remedy could not be granted in equitable actions. - (Ebner v. Bradford, 3 Abb. Pr. [N. S.]248 ; Van Wyck v. Bauer, 9 id. 142; Hankinson v. Page, 12 Civ. Proc. Rep. 288; Thorington v. Merrick, 101 N. Y. 5.)

I find no case holding that an attachment can be granted in an action which-seeks other relief before there can be a' judgment for money. It was not so held in Hamilton v. Penney (29 Hun, 265) upon which the plaintiff'seems,to rely. The plaintiff there sought, to recover the amount due upon a promissory note made by the • defendant. Unlike the case at bar a personal judgment was sought and could be entered therein. It is true that the plaintiff asked in addition to the demand for 'judgment that , the' mining stock given ■ to- secure the note be sold and the proceeds applied upon the judgment. Of that- the court said : This averment is no- part of the cause of action. It is just and fair that the defendants have the' benefit of the collateral security. The rule of law in such cases gives the right to have the collateral applied upon the claim with- - out the plaintiff’s offer. It is not material whether the .application of the collateral be made before judgment- for the moiiey amount due or afterwards. ' * * * The acknowledgment that the plain- - tiff holds collateral which he wishes to have sold to apply upon the judgment does not therefore make the claim other than a claim for money only.”

That action was in. form an action for the recovery of money only, and it appears that the plaintiff complied with the conditions imposed by section 636 of the Code by furnishing an affidavit stating, among other things, that a cause of action existed in liis favor against the defendant for the amount due on a promissory note of $1,000 and interest, Which amount plaintiff is entitled to recover from defendant over and above all counterclaims known to plaintiff.” I think that case was within the letter of the law relating to attachments and quite consistent with the idea that an attachment is not allowable in this class of actions.

The order should be reversed, with ten dollars costs amj disbursements, and the motion .to vacate, attachment granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate attachment granted, with ten dollars costs. ■ 
      
      See Code Proc. § 227, as amd. by Laws of 1866, chap. 824, and Laws of 1875, chap. 28; revised in Code Civ. Proc. § 635, and amd. by. Laws of 1877, chap. 416 ; Laws of 1894, chap. 738, and Laws of 1895, chap. 578.—[Bep,
     