
    Ferdinand A. Strauss, Resp’t, v. John Henry Vogt, Def’t.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    Attachment—Motion to vacate—Assignee of debtor.
    A motion to vacate an attachment may be made by the debtor or his assignee, but the right to do so does not necessarily extend to both. Where the debtor has made the motion and it has been denied, such decision, until reversed, precludes the assignee from obtaining a rehearing of the matters adjudicated.
    Appeal by Edward E. Thomas, the assignee for the benefit of creditors of the defendant Yogt, from an order dismissing an order to show cause* obtained by said assignee, and substantially denying to said assignee the right to move to vacate an attachment against the property of the defendant levied prior to the assignment.
    The following is the opinion of the.special term:
    McAdam, J. Under § 682 pf the Code, a defendant or his assignee may lawfully move to vacate an attachment against property. It is a right belonging to either, but does not necessarily extend to both. The defendant moved,- 1st, on the original papers; 2d, on counter affidavits. Both motions were denied, and an appeal is now pending from the decision last made, in which the assignee may be heard at general term. These decisions until reversed preclude the assignee from obtaining a rehearing of the matters adjudicated; he merely succeeds to the rights of the assignor subject to the litigation then pending. The adjudications made bind the assignee on account of the privity between the parties, see Wells on Res Adjudicata, § 32; Luddington’s Petition, 5 Abb. N. C., 307; and by analogy, see rule as to privity bailo.r and bailee, Wells, supra, § 67. Suppose the present application should be denied upon the merits, what is to prevent successive assignees from making similar motions, founded on their newly acquired interest in the property ? The line must be drawn somewhere, or motions of this kind may become interminable. The motion by the assignee will, therefore, be denied, and upon the ground that he has, under the circumstances, no right to a rehearing without leave of the court first had and obtained. No costs.
    
      F. A. Thomson (James J. Allen, of counsel), for app’lt; W. J. Townsend for resp’t.
   Per Curiam

The order should be affirmed, with ten dollors costs and disbursements, on the opinion of the special term.

Freedman and Gildersleeve, JJ., concur.  