
    ROBERT W. FIELDING, Respondent, v. JOHN LUCAS, Appellant, Impleaded, &c.
    
      Attachment against firm property — when the attaching creditor is not a proper party to an actionfor a dissolution of ihefirm.
    
    ‘The complaint in this action alleged that the plaintiff and the defendant Walter were copartners, and that the firm had become insolvent; that the .other defendants had, by collusion with the defendant Walter, commenced .actions against the firm in the Marine Court of the City of New York, in ■which attachments had been issued, under which property of the firm had «been seized; that such attachments were void, for the reason that the firm .¿had a place of business in the city of New York, though both of the .members thereof resided in Kings county. The relief sought was the dis.-.solution. of the firm, the appointing of a receiver, the vacating of the attachment, and also that the said defendants might be restrained from further prosecuting their actions in the Marine Court.
    
      Meld, that as to the attaching creditor, the complaint did not state facts sufficient to constitute a cause of action, and that it should be dismissed.
    Appeal by the defendant Lucas, from a judgment entered upon an order overruling a demurrer to the complaint.
    The complaint alleged, among other things, that tbe plaintiff and tbe defendant, Jobn F. Walter, Jr., were copartners by tbe firm-name of Walter & Fielding, under an agreement by which tbe period of its continuance was not determined ; that tbe copartnership bad become insolvent; that by collusion with tbe defendant, John F. Waiter, Jr., tbe other defendants bad commenced actions against tbe firm in tbe Marine Court of tbe city of New York; •.that warrants of attachment bad been issued in tbe said actions by justices of tbe Marine Court, one of them at tbe suit of the defendant, Incas, in an action on contract for tbe payment of money only; •that tbe action was commenced by tbe issuing of a summons returnable in six days, and that tbe warrant was issued upon tbe sole ground -that tbe members of tbe said firm of Walter & Fielding were not .■residents of tbe city and county of New York; that, in fact, both ■members thereof were residents of tbe county of Kings, and bad ibeir office and place of business in tbe city and county of New York at' tbe time said warrant was issued. Tbe complaint further ¡alleged that the sheriff had taken possession of the property of the ■firm under the said attachment, and that the said property would be sacrificed, to the great injury of the creditors of the firm, unless the .attachment was vacated. That the said justices of the Marine ■Court had no jurisdiction to issue a warrant of attachment against the said firm as non-residents, so long as the members thereof were residents of the State of New York, and had their office and place ■of business in the city of New York.
    The relief asked for was the dissolution of the copartnership, the appointment of a receiver of its property pendente lite, and ■finally, the distribution of the assets of the firm, and that the said ■warrant of attachment be declared void, and the firm property be released therefrom, and that the defendants be restrained from prosecuting the said actions in the Marine Court, and be required to. prove their claims in this action; and for other and general relief.
    The defendant, Lucas, demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action.
    
      Drnid Or<mford, for the appellant.
    
      Joseph A. Shoudy, for the respondent.
   Barnard, P. J.:

The complaint states no legal cause of action against the defend.-ant, Lucas; he is a creditor of the firm of Walter & Fielding. He lives in Brooklyn, and commenced an action against the parties in the Marine Court of the city of New York, to recover his debt. 'The partnership had an office or place of business in the city of New York. The attachment was granted against the property of the firm by the judge of the Marine Court, based upon an affidavit -of the non-residence of the parties. The partnership goods were ¡seized under the attachment of Lucas and others. One of the partners commences an action against his copartner, to settle the partmership affairs, to terminate the partnership, and Lucas is made a party defendant, and relief is asked against him that the attachment, he decreed to be void, and that he prove his claim in this action, and, án the .meantime, pending the action, that he be enjoined from enforcing his attachment, and that a receiver be appointed. As toLncas and other attaching creditors, the remedy at law against their enforcing a void attachment is adequate. The parties can release th& attached property by a bond. They can move to vacate the attachment. They can defend upon the ground that the Marine Court has no jurisdiction of the action. If Lucas has sued in the wrong; court, it is not the province of a court of equity to bring him in as a party to answer an allegation to that effect, and to have his-suit arrested. It is no aid to the complaint to aver that Lucas had bad motives in enforcing his claims in the Marine Court. If he-has a good debt, and proves it in a competent court, no question, will be made whether his design was to harass the parties, or one of" them, or to get an advantage over other creditors.

The judgment should be reversed, with costs to defendant. Lucas.

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment reversed, with costs to defendant Lucas.  