
    SUPREME COURT.
    Luman Woodmansee and Abraham Garside agt. Amos S. Rodgers.
    
      Attachment — Gode of Oml Procedure, section 682 — mere levy not an actual application of attached, property under this section — Vacation of, by subsequent attaching creditor.
    
    A mere levy is not an actual application of the attached property under section 682 of the Code of Civil Procedure, so as to prevent a subsequent attaching creditor from applying to vacate the same as provided in this section (affirming 8. 0., ante 98).
    Where the levy is of goods, wares and merchandise, the actual application must he of the proceeds thereof after sale, to prevent the motion to vacate the attachment.
    
      First Department, General Term, March, 1880.
    On the twentieth of October last, Rnman Woodmansee and Abraham Garside, creditors of Amos S. Rodgers, obtained a warrant of attachment in the supreme court against the property of the debtor. The warrant was issued to the sheriff, who levied on the property of the defendant thereunder; the plaintiffs subsequently obtained judgment in the action and issued execution thereon. In the meantime and before the entry of the judgment, Weil Brothers, also creditors of Rodgers, obtained an attachment against his property, and before the same had been sold by the sheriff, a motion was made in their behalf to vacate the attachment of Woodmansee & Garside, upon the affidavit upon which the same was granted. The motion was made under section 682 of the Code, and was argued before judge Beady, who vacated the attachment of Woodmansee & Garside, in an opinion which, with plaintiff’s affidavit, will be found ante, page 98. An appeal was thereupon taken to the general term, which affirmed the order of judge Beady, rendering the following opinion.
    
      Otto Howitz, for plaintiffs.
    
      
      Blumensieil <& Sirsch, for Weil Brothers, subsequent attaching creditors.
   Davis, C. J.

This motion was made by subsequently attaching creditors to vacate a prior attachment of the appellants, both having attached the same property. Section 682 of the Oode provides that the defendant, or any person who has acquired a lien upon, or interest in, his property after it was attached, may, at any time before the actual application of the attached property or the proceeds to the payment of a judgment recovered in the action, apply to vacate or modify the warrant.

It has been held that a creditor who has obtained and levied a subsequent attachment may move, under this section, to vacate a prior attachment (Steuben Co. Natl. Bank agt. Alberger, 55 How., 481; 56 id., 345). It does not seem to be disputed but that the attachment in the action of the appellants was issued upon an affidavit which was insufficient to uphold it. The only question presented was -whether there was such an application of the attached property to the payment of the judgment as cuts off the right to make the motion under section 682. The court below held that a sufficient application was not shown. What is shown is, in substance, as follows:

The appellants commenced an action on October 20, 1879, against A. S. Bodgers, and on that day made application to a judge of this court for, and obtained a warrant of attachment against the property of the defendant. Upon that warrant certain goods, wares and merchandise of the defendant-were attached on said 20th day of October, 1879.

On the 27th October, 1879, an execution on a judgment in the action, which seems to have been recovered, as we must assume, regularly, was issued and delivered to the sheriff, who, on the last-mentioned day, as he states in his affidavit, “ did levy upon said property of the defendant by virtue of said execution, and did apply the said property heretofore attached as aforesaid to said execution.”

The moving creditors, according to the. affidavit of their attorney, did, on the 2d day of October, 1879, obtain a warrant of attachment against the above-named defendant in the marine court, and the attorney swears that by virtue of said attachment and levy the 'said Simon Weil and Isaac Weil have acquired a lien upon the property of the defendant, after the same was levied upon under a warrant of attachment issued in the above action. It is not shown whether the attachment of these creditors was levied upon before or after the levy or the execution. That fact, however, is perhaps not important in determining the precise question before us, though it may become so at some future stage of the controversy. As aforesaid, the only question here is whether the levy satisfies the language of the Code. That language, it will be observed, is actual application,” etc: It is settled by authority that a levy of an execution upon property is a satisfaction of the judgment sub modo, and not absolutely (Green agt. Brock, 23 Wend., 490, 491 and cases there cited). The property described in this case is described as goods, wares and merchandise. It does not, therefore, appear to have been something of which the sheriff could have made direct application to the judge, but property which must first have been sold, and the proceeds of the sale then applied. The section of the Code provides for both of these cases — the one of an actual application of the attached property as of money, and the other of the proceeds thereof. Where the levy, therefore, is of goods, wares and merchandise, the actual application must be of the proceeds thereof after sale, to prevent the motion to vacate the attachment. In this case there was nothing more than a levy by the sheriff under an execution on the twenty-second day of October, although he states that he did on that day apply the said property heretofore attached as aforesaid to said execution.” Tet neither he nor any one else stated that it or its proceeds was applied to the payment of the judgment. Saying that he has applied the property to said execution is nothing more than another form of asserting that he had levied under it.

Our conclusion, therefore, is that there was no such application as the Code requires, and that the attachment was properly vacated.

We do not pass upon the question whether the appellants have a right by virtue of a levy of the execution to hold the property, because their rights in that respect may depend upon the question of facts not appearing in the papers.  