
    Henry A. Blake, App’lt, v. Richard Crowley and Isabella Corbett, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887)
    
    1. Foreclosure of a chattel lien — Warrant of seizure — When granted—Code Civ. Pro., § 1738.
    A warrant of seizure may he granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. Code Civ. Pro., § 1738.
    2. Same—Affidavit.
    The affidavit to obtain the warrant of seizure is not required to- state that the claim is above all counter-claims.
    3. Same—Practice—Breach of contract—Code Civ Pro., § 636.
    “Breach of contract” has a definite meaning as used in Code Civil Procedure, section 636, and does not include the foreclosure of a chattel mortgage, even though there was,a failure to pay according, to promises made.
    4. Same—Not entitled to trial by jury.
    An action to foreclose a chattel lien is not one in which either party can demand a trial by jury.
    5. Same—Rights of mortgagee.
    The mortgagee is entitled to hold the chattel, to have the balance due on it adjudged, and to have a judgment to collect the amount due out of the proceeds of the chattel.
    Appeal from an order vacating a warrant of seizure in an action to foreclose a chattel lien.
    
      Charles W. Seymour, for appl’t; William J. Bulger, for resp’ts.
   Barnard, P. J.

A warrant of seizure may be granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. Code, §§ 1737, 1738.

The provision in section 1738, that the proceedings to. procure the writ and those after its procurement shall be similar to the provision in respect to attachment, was not. intended to require the affidavit to state that the claim is> above all counter-claims, as in section 636 of the Code. This section only applies to attachments in actions to recover damages for breach of contract.

There were three other cases in which attachments were proper, but it was only in cases for breach of contract that ■section 636 applied. Breach of contract has a definite meaning and does not include the foreclosure of a chattel mortgage, even though there was a failure to pay according to promises made. The affidavit is, therefore, sufficient. The action is not one in which the defendant Crowley can demand a trial by jury. Crowley assigned property to defendant Corbett, and she assigned it to plaintiff to secure Crowley’s debt. The complaint avers that only a portion of this debt has been paid. An action at ldw cannot reach the proper remedy. The plaintiff is entitled to hold the chattel, to have the balance due on it adjusted, and to a judgment to collect the amount due out of the proceeds of the chattel.

The order vacating the warrant should, therefore, be reversed and the case restored to the special term calendar for trial, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.  