
    Horace Holding Company, Inc., Plaintiff, v. Helen L. Clements, Defendant.
    Supreme Court, New York County,
    March 2, 1926.
    Attachment — levy — safe deposit box leased to defendant and another — sheriff will not be ordered to open box in absence of showing that it contained property of defendant.
    A sheriff who has a writ of attachment to levy will not be ordered to open a safe deposit box leased jointly to the defendant and her mother, since there is no evidence that the box contained any property of the defendant and there is evidence that it does not contain property of the defendant.
    Motion for order directing sheriff to break into safé deposit box leased jointly by defendant and her mother and levy on its contents under a Warrant of attachment.
    
      Hartman, Sheridan & Tekulsky, for the plaintiff.
    
      Lawrence I. Gerber, for the defendant.
    
      Shearman & Sterling, for National City Safe Deposit Company.
   Proskauer, J.

The National City Safe Deposit Company has leased a box jointly to the defendant and her mother. The plaintiff asks an order directing the sheriff to break into this box and levy on its contents under a Warrant of attachment. Under Carples v. Cumberland Coal & Iron Co. (240 N. Y. 187) the sheriff has power voluntarily to break into a safe deposit box leased solely to an attachment debtor where there is evidence that it contains property of such debtor. But that case is not authority for the proposition that he may be ordered to break into a box leased jointly to the defendant and another person, with no showing whatever that it contains any of the property of the defendant on an affirmative oath of the colessee that it contains no such property.

The motion is denied, with leave to renew if after completion of proceedings in aid of execution it shall appear that the box contains any property of the defendant. Order signed.  