
    George W. Johnson, Resp’t, v. Hardwood Door and Trim. Company, Def't. Herbert E. Millhollen, Junior Attaching Creditor, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 18, 1894.)
    
    Attachment—Vacation—Merits oe action.
    On motion, by junior attaching creditor, to vacate a senior attachment, the court will not pass upon the merits of the action.
    Appeal from an order denying a motion to vacate an attachment.
    
      Robert F. Little, for app’lt; Frederick P. Bellamy, for resp’t.
   Cullen, J

—This is an appeal from an order denying the motion of the appellant, a junior attaching creditor, to vacate the plaintiff’s attachment. The action is on contract, and the defendant a foreign corporation. The appellant sought to vacate the attachment on proof by affidavit that the original consideration, out of which the obligation in suit sprang, was the purchase by the defendant, from plaintiff's assignor, of certain shares of the defendant’s own capital stock; and it also, by proof, showed that such a purchase was, by the law of Pennsylvania (the domicile of defendant), void. The motion was denied on the ground that the court would not, on such an application, pass upon the merits of the action. We think that this position was correct. The general rule is that on a motion to vacate an attachment the court will not try the cause itself, and determine whether the plaintiff can succeed or not. Brown v. Wigton, 45 St. Rep. 135 ; 18 N. Y. Supp. 490 ; Sterns Paper Co. v. Johnson, 18 Id. 490; Rowles v. Hoare, 61 Barb. 266. There are some exceptions to this rule, but this cause plainly is not one. On the contrary, the rule should here be given full force. The defendant is a foreign corporation, and has not appeared in the action. If the attachment should be vacated, the plaintiff will not only be deprived of his security, but also of the right to try his cause of action, for the court has acquired no jurisdiction of the defendant but by the attachment. The rights of the appellant can be entirely protected by another course. Under the authority of Lee v. Pfeffer, 25 Hun, 97, he may apply to intervene in this action, and, on being made a defendant, contest the validity of the plaintiff’s claim in the ordinary manner, by answer and trial.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.  