
    Cornelius Mertz, Respondent, v. Theodore Fenouillet, as President of the Syndicat des Proprietaires et Fermiers de Toulon, Ollioules et Environs Pour le Defense de Leurs Interets Agricoles et la Vente des Oignons à Fleurs, Appellant.
    
      An attachment —it cannot issue against the president of a joint stock association located in France —the execution could not run against the joint or several property of the members.
    
    Section 1921 of the Code of Civil Procedure, relative to áctions by or against an unincorporated association, directs that where a judgment is docketed for a sum of money in an action against such an association, the execution issued thereon must require.the sheriff to satisfy the same out of any personal property belonging to the association or owned jointly or in common by all the members thereof, omitting any direction respecting" real property. A warrant of attachment issued to the sheriff in an action brought against a defendant as president of a joint stock association whose members are residents of France, directing him to attach “so much of the property within your county which the defendant has or may have at any time before final judgment in this action,” cannot be sustained, as the attachment runs against the property of the president of the association only, and' as he has no title to any of the property of the association, and as the execution must follow the attachment, no execution could issue in the action which would authorize the sheriff to take any property belonging to the association or which was owned jointly or in common by all of its members.
    Ho debt of the president being sued upon, an attachment against his property could not issue.
    Appeal by the defendant, Theodore Fenouillet, as president of the Syndicat des Proprietaires et Fermiers de Toulon, Ollioules et environs pour le defense de leurs interets Agricoles et la vente des Oignons á fleurs, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of December, 1896, denying .his motion to vacate an' attachment theretofore issued in the action.
    
      Joseph Kling, for the appellant.
    
      Francis Lawton, for the respondent.
   Van Brunt, P. J.:

This is an action brought against the president of a joint stock association. The affidavit upon which the attachment was procured alleges that the defendant is the president of an unincorporated association consisting of more than seven persons, and that the action is brought against him in his representative capacity. After setting out certain causes of action, the affidavit alleges that the defendant, as president of said association, and the members thereof are not residents of the State of New York, but are all residents of France, and that said association is located and carries on its business at Ollioules, France. Upon this affidavit a warrant of attachment was issued which recites that an application had heen made to the judge granting the warrant by the plain tiff for an attachment against the property of Theodore Fenouillet, as president, etc., defendant, in an action in the Supreme Court for New York county, and that upon such application it duly appeared to the satisfaction of the judge that a cause of action existed in favor of the plaintiff against the defendant, etc., and that said defendant and all the members of said association are not residents of the State of New York, and that they reside in France. By this warrant the sheriff was commanded to attach “so much of the property within your county which the said defendant has, or may have at any time before final judgment in this action.”

A motion was made upon these papers to vacate the attachment upon the ground that no attachment could issue against a joint stock association, and, further, that no ground for the issuance of an attachment such as the one in question was shown to exist.

Upon an examination of the provisions of the Code in reference to actions by or against an unincorporated association, it will be seen that section 1921, among other things, provides that where a judgment is docketed for a sum of money in such an action, an execution issued thereon must require the sheriff to satisfy the same out of any personal property belonging to the association, or owned jointly or in common by all the members thereof, omitting any direction respecting real property. In the case at bar the attachment is issued against the defendant as president and not against the property belonging to the association or owned jointly or in common by all the members thereof. The president of a joint stock association does not own the property of the association, and hence it would appear that no process whatever has been issued against the association; and if a judgment were obtained in this action the execution would run against the property entirely different from that which was sought to’ be made the subject of levy under the warrant of attachment. It is clear that the execution must follow the attachment, as it is only attached property which may be reached by execution in an action of this description. This seems to be fatal to the warrant, which would not authorize the sheriff to take any property belonging to the association or owned jointly or in common by all the members thereof.

The order must be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted, with ten dollars costs. .

Barrett, Rumsey, Williams and Patterson, JJ., concurred.

Barrett, J.

(concurring):

The Code of Civil Procedure makes no provision for an attachment against an unincorporated association sued in the name of its president or treasurer under the provisions of section 1919., The attachment which • is authorized by section 635 of the Code is an attachment against the property'(A one or more defendants. These defendants, as specified in section 636, must either be natural persons ' or corporations, and the warrant must run against their property. The execution authorized in an action against the president or treasurer of an unincorporated association runs, not against the property of the defendant, but against the property of the associa^ t-ion. The law does not vest the title to that property in either the president or treasurer of the association. An attachment, consequently, cannot run against the property of either of these officers as such, for as such they have no property. The action, though in name against the officer, is, in substance, against the association, and the law makes no provision for an attachment against such an association. The plaintiff could have sued the members of the association if he had chosen to do so (Code Civ. Proc. § 192; Schwartz v. Wechler, 29 Abb. N. C. 332; Humbert v. Abeel, 7 Civ. Proc. Rep. 417; Hudson v. Spaulding, 6 N. Y. Supp. 877); and as they are all non-residents he could have had an attachment against them which would have run against the property of the association; but he has chosen to proceed against the president as such, and in that action he is confined to the remedies afforded by sections 1919 to 1924 of the Code. These do not embrace an attachment against the property of the association, either directly" or indirectly, and they plainly exclude an attachment under sections 635 and 636.

I agree that the order should be reversed and the attachment vacated.

Order reversed, with ten dollars costs and disbursements, and the motion to vacate attachment granted, with ten dollars costs.  