
    Trow’s Printing and Bookbinding Company, Appellant, against James W. Hart, Defendant (Nelson Sherwood, Respondent).
    (Decided December 6th, 1880.)
    . Under the provision of section 682 of the Code of Civil Procedure,—that a person who has acquired a lien upon or interest in the defendant’s property after it was attached may at any time before the actual application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action, apply to vacate or modify the warrant, &c.,—such application may be made by a purchaser of a portion of the attached property subsequent to the attachment.
    Where a motion! to vacate an attachment is made on the affidavit on which the attachment was granted, andón “all the papers filed and served in said attachment proceedings in the action,” the plaintiffs cannot sustain the attachment by additional affidavits or by papers included in the judgment roll in the action hut not required to obtain the warrant of attachment. The failure of an affidavit to obtain a warrant of attachment, to show, as required by section 686 of the Code of Civil Procedure, that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him, is sufficient ground to vacate an attachment granted thereon.
    Appeal from an order of this court vacating a warrant of attachment.
    The action was brought upon certain promissory notes against the defendant James W. Hart as indorser, and a
    
      warrant of attachment against his property was obtained in the action by the plaintiff. Subsequently Nelson Sherwood, the respondent in this appeal, having purchased from the defendant Hart certain real estate, being a portion of the property upon which the attachment had been levied, moved to vacate the attachment, as to the property purchased by him, on the grounds stated in the opinion. The motion was granted, and an order was entered vacating and setting aside the attachment as to that property. From the order the plaintiff appealed.
    
      Raphael J. Moses, Jr., for appellant.
    
      I. T. Williams, for Nelson Sherwood, purchaser, respondent.
   J. F. Daly, J.

Any person who has acquired a lien upon or interest in the defendant’s property after it was attached may, at any time before actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief together or in the alternative. Such are the broad provisions of section 682 of the Code, and they are broad enough to include the purchasers, assignees and other transferees of the attached property among those who may apply to vacate the attachment. A subsequent attaching or execution creditor may be described as a person who has acquired a lien, and so may a subsequent mortgagee; but the section enumerates also the persons who may have acquired am, interest in the property, and the intention to’ extend the benefits of the provision to others besides attaching and judgment creditors of the. judgment debtor is manifest.

Any arguments based upon the inconvenience to the plaintiff arising from a multitude of motions on the part of different purchasers of portions of the attached property, can have no weight against a plain statutory provision. The section under consideration (682) has received no interpretation from the courts, as yet, in so far as the point above discussed is concerned. Judge Andrews, in Steuben County Bank v. Alberger (75 N. Y. 179), speaks of this section as extending to persons having liens on the attached property acquired subsequent to the attachment, the remedy, formerly confined to the defendant, to have the attachment vacated on motion; and speaks of the section providing that the defendant or a lienor may apply, and makes, no mention of purchasers or assignees having the right. But the point in question was not under consideration. The moving party in that case was a judgment creditor of the defendant in attachment.

As to the next point raised by appellant, it seems clear that a purchaser of, a portion of the attached property has acquired am interest in the attached property. There seems to be no ground for holding that the interest mentioned in the section must embrace all the property attached. Respondent on this question refers us to Royal Ins. Co. v. Noble (5 Abb. N. S. 54); but that case determines only that an application by the defendant to procure the discharge of the attachment by giving security must be made as to dll the attached property; that he cannot choose what portion he will release and give security for that portion only (Old Code, §§ 240, 241). The case has no application to á purchaser from the judgment debtor moving to vacate the attachment. The new Code, § 687, it may be said in passing, now permits defendant to obtain the discharge of the attachment as to a portion of the attached property on giving an undertaking.

The third point taken on the appeal is that the judge at special term should have received the additional affidavits in support of the attachment, which plaintiff offered in answer to the motion. The motion was made on the affidavit on which the attachment was granted, and all the papers filed and served in said attachment proceedings in the above action.” This confined the papers to those used to obtain the warrant. Appellant argues that it embraced all the papers in the judgment roll.

The notice, however, distinguishes between the papers in the action and those in the attachment proceedings. The Code, § 636, provides what must be shown to obtain the warrant. An affidavit and an undertaking are essential—nothing more. The motion was not made on the complaint nor on the testimony taken on the application for judgment. The case of Ives v. Holden (14 Hun, 402), is clearly distinguishable froip this, because the motion there was made on the complaint as well as the affidavit for attachment. As the motion was made upon the papers on which the warrant was 'granted, the plaintiff could not put in additional affidavits in support of the attachment (Code, § 683; Steuben County Bank v. Alberger, 75 N. Y. 179).

As to the sufficiency of the affidavit upon which the attachment was granted, the decisions are conflicting on the question whether the want of venue makes the affidavit a nullity (Barnard v. Darling, 1 Barb. Ch. 218; Cook v. Staats, 18 Barb. 407); but the absence of an indispensable allegation makes the affidavit defective. The Code, § 636, provides that the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him. This is a wholesome provision, and as the statute must be strictly observed, the allegation in the precise form or in substance is as necessary as the statement of a cause of action or of the grounds on which the- attachment is applied for. This view has been taken by the supreme court (Lyon v. Blakesly, 19 Hun, 299, Genl. T. 2nd Dept. 1879). The allegation in question is not found in the affidavit of Edward Lange, on which the attachment was issued, and the attachment was properly vacated.

The order should be affirmed, with costs.

Chables P. Daly, Ch. J., and Yan Hoeseb, J., concurred.

Order affirmed, with costs'. 
      
       The order entered on this decision was affirmed by the court of appeals, June 14th, 1881 (see 85 N. Y. 500).
     