
    Columbia Bank v. Ingersoll.
    
      (Supreme Court, Special Term, New York County.
    
    May 7, 1888.)
    Attachment—Levy upon Real Estate—Right oe Attaching Creditor to Rents.
    The levy of an attachment upon real estate does not entitle the attaching creditor to an order applying, in satisfaction of his execution, the rents accruing to the debtor.
    At chambers. On motion to vacate an order.
    Motion by the Rhode Island National Bank to vacate an order made in supplementary proceedings in aid of an execution issued upon a judgment obtained by the Columbia Bank against Lorin Ingersoll. The Rhode Island National Bank, a judgment creditor of Ingersoll, in supplementary proceedings, procured the appointment of a receiver of the judgment debtor’s property. The order appointing the receiver was made April 24,1888. Prior to this time the Columbia Bank, in an action against Ingersoll, had obtained an attachment against his property, and the warrant was served on a member of the firm of Watson, Karsch & Co., tenants of premises leased by Ingersoll, as debtors of, or persons holding property of, Ingersoll, and demand made for a certificate of the indebtedness. Judgment having been obtained thereafter, and execution having issued, supplementary proceedings in aid of the execution were instituted against Watson, Karsch & Co., as debtors of Ingersoll, for rents accrued. Upon the examination therein, and upon notice and consent of Ingersoll, an order was made April 25, 1888, after the appointment of the receiver, and without notice to him, and without disclosing the fact of his appointment, that Watson, Karsch & Co. pay over to the sheriff the moneys owing by them to Ingersoll for rents accrued under the lease. Another attachment was also levied, in the same manner, in an action by one Van Slyck against Ingersoll.
    
      Edgar J. Nathan and Michael H. Cordozo, for the motion. J. Homer Hildreth, for Columbia Bank, opposed. Geo. W. Van Slyck, pro se.
    
   Van Brunt, P. J.

There is no doubt but that the order under which Watson, Karsch & Co. paid over the money in question to the sheriff was irregular. There seems to have been a studious suppression of the fact that a receiver of the judgment debtor had been appointed, and that the judgment debtor had therefore no power to consent to the entry of the order under which said payment was made. There is, however, another question presented, and that is as to the lien upon these moneys acquired by the attaciiment. No lien upon rents is acquired by the filing of a Us pendens against the real estate. All that could be sold under an execution issued upon a judgment in an action where real estate had been attached, would be the right, title, and interest of the judgment debtor in the real estate at the time of the filing of the lis pen-dens. It makes the lien that of a mortgage, and no more. It in no way gives right of possession; nor is there any way by which rents can be impounded by reason of such a levy. Even if the rents can be attached before becoming due, (which it is not necessary to decide here,) it is evident that they can only be reached by levying upon the lease under which such rents arise; and there is no pretense that any such levy was made here. If such lease is the subject of levy, it must be because it is an instrument for the payment of money; and therefore a levy can only be made by taking the lease into the sheriff’s actual custody. Code Civil Proc. § 649; Anthony v. Wood, 96 N. Y. 180, by which the case of Bills v. Bank, 89 N. Y. 343, is distinctly overruled. These considerations show that there is no such clear right as would entitle the attaching creditors to an order applying this money upon their executions. It is not necessary to determine the rights of the attaching creditors between themselves. The motion should be granted directing the sheriff to pay over this money to the receiver, with costs against the Columbia Bank, such receiver to hold the same subject to the order of the court; and no order should^ be made disposing of the same without due notice to the so-called attaching creditors.  