
    (31 Abb. N. C. 46.)
    KROOKS v. L. & C. WISE CO.
    (Supreme Court, Special Term, New York County.
    October, 1893.)
    Attachment—Directions to Sheriff—Modification of Order.
    An order directing the sheriff to take possession of the attachment debt- or’s books of account, and to permit plaintiff to examine them for the purpose of discovering the whereabouts of the debtor’s property, will be modified by striking out the direction to take possession of the books, Where the sheriff states in his affidavit that he was informed that the books referred to were in the debtor’s safe, of which he did not have the combination, since such order might be construed as a direction from the court to break open the safe.
    Action by Samuel J. Krooks against the L. & C. Wise Company. An attachment having been levied on defendant’s stock of goods, plaintiff procured an order directing the sheriff to take possession of the books of account of defendant, which plaintiff stated in his moving affidavit were at defendant’s place of business, and that the sheriff permit plaintiff to examine such books. • An affidavit of the sheriff was filed, on a motion to vacate said order, stating that he had seized defendant’s safe under the writ of attachment, and that he was informed that the books referred to were in said safe, but that he did not have the combination, and could not open it. Modified.
    
      John H. V. Arnold, for the motion.
    Blumenstiel & Hirsch, opposed.
   PATTERSON, J.

The ex parte order granted on September 28th should be modified by striking out the direction to the sheriff to take into his possession the books of account. The law prescribes what the sheriff must do, and he must act or refuse to act at his peril. The order, as it stands, might well be construed as a direction from the court to break open safes, and destroy property. A new order may be entered, simply directing the sheriff to allow the plaintiff to examine any books in his possession, so far as may be necessary to discover property upon which the attachment may be levied. Settle order on notice.  