
    Susan B. Yerkes, App’lt, v. Charles McFadden, Sr., et al., Resp'ts.
    
      (Court of Appeals,
    
    
      Filed January 30, 1894.)
    
    Attachment—Joint debtobs.
    An attachment against the property of several defendants in an action on a joint liability, though the summons is served on but one of the defendants within the prescribed time, and no service is made or publication commenced against the other defendants, cannot be vacated as to the latter for that reason.
    Appeal from order of the general term of the supreme court in the fourth judicial deparment, made December 9. 1892, which reversed ah order of special term denying a motion by defendants to vacate an attachment.
    This action was brought against defendants, who were nonresidents, as co-partners, to recover rent due, etc., under a lease.
    On August 1, 1892, an order was obtained for service of the summons for publication, and on August 15, 1892, a warrant of attachment was procured and a levy made thereunder upon partnership property. The publication of the summons was commenced during the first week in August in two newspapers, and, as directed by the order, continued for six weeks in one of them, but in the other, by mistake of the printer, was discontinued after a publication for five weeks, but after an interval of two weeks, upon discovery of the mistake, it was renewed and directed to be continued for six weeks. On August 26, 1892, the summons was personally served upon one of the defendants, but no personal service was made on the other two.
    
      John M. Hoe, for app’lt; 0. P. Hurd, for resp’ts.
   Andrews, Ch. J.

We think the general term erred in vacating the attachment as to the two appellants in that court, although publication was not commenced against them within the prescribed period. The action was upon a joint liability of the three defendants. Personal service was made on the third defendant August 26, 1892, thirteen days after the warrant of attachment was granted, and the attachment was levied on the joint property of the firm. In an action against joint debtors service of summons on one authorizes judgment against all, which may be enforced by execution against the joint property, although the other defendants are not served, and do hot appear in the action. Code, §§ 1932 to 1935 inclusive; Sternberger v. Bernheimer, 121 N. Y., 194; 30 St. Rep., 751. The same rule applies in case of an attachment. Where an attachment issues against the property o£ several defendants in an action on a joint liability, it may be executed by a seizure of the joint property, and although the summons is served on but one of the defendants within the time prescribed, and no service is made or publication commenced against the other defendants, the attachment cannot be vacated as to them for that reason. The attachment and the lien continues, and if the plaintiff obtains judgment on the joint liability, the joint-property seized on the attachment may be sold on the execution. The right to seize the joint property on an attachment in an action against joint debtors, although the summons is served on one only, is the same as in case of an execution on a joint judgment under similar circumstances. Smith v. Orser, 42 N. Y. 132. The case of Staats v. Bristow, 73 N. Y. 264, has no bearing upon this question. There, in an action brought for a co-partnership debt an attachment was issued against the property of one of the co-partners only, on the ground that he was a non-resident, on which his interest in the co-partnership property was levied upon. The co-partnership at the time was insolvent. After the seizure on the attachment the firm made a general assignment for the benefit of creditors, and subsequently, on obtaining judgment in the attachment action, the interest of the attachment debtor in the firm property was sold on execution. An action was brought to determine the respective rights of the purchaser on the execution sale, and the assignee for creditors in the property, and it was held that the plaintiff acquired nothing by his levy and sale, because the interest of the attachment debtor in the property was nothing, as the firm was insolvent, and that the assignee acquired title to the corpus of the property under the assignment.

In this case the attachment was against the joint property, and if good as against one of the defendants, was good against all. The lien was not lost, nor could the attachment be vacated as against any of the defendants, there having been a valid service of the summons within the time prescribed by § 638 of the Code, upon one of the defendants.

The order of the general term should be reversed and the order of the special term affirmed, with costs.

All concur.

Ordered accordingly. 
      
      Reversing 49 St. Rep., 918.
     