
    Louis T. McFadden, Plaintiff, v. John A. Innes, Defendant.
    (Supreme Court, New York Special Term,
    October, 1908.)
    Attachment — Property subject to attachment — In general — Interest of vendor or vendee in land.
    Where.a contract of sale provided for the payment of the purchase price by canceling the vendor’s indebtedness to the vendee of $50,000 and by paying the balance, partly in cash, which was to be applied to paying certain liens on the property, and partly in notes; and where, at the time of the conveyance .by the vendor pursuant to the contract, the amount of the liens to be paid was estimated at a certain sum and the vendee assumed their payment and gave notes for the balance which are not within the jurisdiction • of the court, the vendor has no interest in the contract which is capable of being levied upon under an attachment, although the contract provides that the sale shall be by the acre and that the vendor may resurvey the tract, and upon the conveyance the area was estimated at a given acreage without prejudice to such resurvey, and although the conveyance was without prejudice to the correction of the estimate of the amount of the liens, but it does not appear that any resurvey has been made showing the vendor’s right to compensation for a greater acreage than that assumed when the transaction was closed, nor that the liens were, in fact, then overestimated.
    Motion to vacate an attachment and to dismiss the action.
    Putney, Twombly & Putney (E. W. Personius, of counsel), for motion.
    Thomas D. Rambaut (C. La Rue Munson, of counsel), opposed.
   Giegerich, J.

This is a motion to vacate the levy of an attachment and to dismiss the action. The action is brought to recover commissions upon the sale of certain real property belonging to the defendant and situate in the State of West Virginia. Both parties are nonresidents. The land in question was sold to the West Virginia Pulp and Paper Company, a Delaware corporation, by a contract in writing. The contract of sale provided that the consideration was to be paid partly by the cancellation of an indebtedness of the vendor to the vendee of $50,000 for which a lien upon the land had been created, and the balance was to be paid partly in cash on certain dates fixed by the contract and partly in notes; it being further stipulated that the purchase money so provided to be paid in cash should be applied to the satisfaction and discharge of certain liens and incumbrances on the property until the same should be fully paid and discharged, and that the deed to be given should contain such stipulations in relation to the removal of those liens as might be agreed upon by the parties. It was further provided by the contract that a resurvey of the lands should be made and final settlement be based upon the acreage shown by such resurvey at a stipulated price per acre. Shortly after the execution of this contract, and before any resurvey, the property was conveyed by the defendant, at the request of the West Virginia Pulp and Paper Company of Delaware, the vendee in the contract, to a corporation of the same name organized under the laws of West Virginia. In that deed the existing liens were estimated at $265,000, which amount was deducted from the purchase price, and such liens were assumed by the grantee in the deed. The acreage was estimated and the balance of the purchase price, based upon that estimate, was paid upon delivery of the deed by promissory notes of the Delaware corporation, some of which notes were negotiable and others, by express provision upon their face, were nonnegotiable. It was provided in the deed that the sale was not of the lands in gross, but was by the acre at a price named, and that either party should have the right at his or its expense to resurvey the property. None of the notes above referred to was within this jurisdiction at the time of the attempted levy of the attachment, and none of them has ever been in the possession of the sheriff. The attempt to levy the attachment was made by the service of a copy of the warrant upon the Delaware corporation at its office in this county, and as a result of this service it is claimed that the indebtedness of the Delaware corporation to the defendant growing out of the transaction above detailed has been attached. So far as that indebtedness was represented by notes, negotiable or otherwise, it is clear that no such result was accomplished. Code Civ. Pro., §§ 648, 649. It is claimed by the plaintiff, however, that owing to the provisions of the contract concerning the discharge of the liens and providing for a resurvey there was a further indebtedness or obligation which was susceptible of attachment and which has been attached by the service of the warrant. As to the liens, the fact appears to be that they were estimated by the parties at the time of the conveyance. There is no evidence to show that they were overestimated and, therefore, nothing to show the existence of any right to a refund in the defendant or of any cause of action on that ground. So far as the papers submitted throw any light upon this point, the inference is to the contrary. If the amount of the liens was not overestimated, the mere fact that some of them had not been discharged did not create an indebtedness of the vendee to the vendor to that extent. The contract provided for such stipulations in the deed with regard to incumbrances as might be agreed upon by the parties and the vendor apparently took the promise of the grantee in his deed to discharge the liens as consideration, pro tanto, for the conveyance. It cannot he said consequently that either the vendee in the contract or the grantee in the deed is indebted to the vendor to the extent of that part of the purchase price which was deducted or retained for this purpose and has not yet been applied. Probably the vendee in the contract is under no further obligation in this regard; but, at all events, neither the vendee in the contract nor the grantee in the deed owes the vendor anything at all except the duty to discharge the liens. There is no indebtedness and nothing to attach, nor has any attempt been made to attach any debt of the West Virginia corporation, the grantee in the deed. ¡Now, as to the possibility of a resurvey, if one be had, and its showing an underestimate of the acreage, the same thing may be said as has been said of a possible overestimate of the liens. A cause- of action cannot be deemed to be sufficiently made out, for it is not yet known whether the resurvey will be had or whether more or less than the estimated acreage will be shown to have been conveyed. The motion, so far as it seeks to vacate the attempted levy upon the indebtedness of the West Virginia Pulp and Paper Company of Delaware to the defendant, should, therefore, be granted. But that branch of the motion which seeks to have the action itself dismissed should be denied. The action is upon contract, and no exceptional facts are shown which require a departure from the rule that our courts will entertain jurisdiction of such actions notwithstanding the fact that both parties are nonresidents. Wertheim v. Clergue, 53 App. Div. 122; Bridges v. Wade, 110 id. 106.

Motion disposed of as indicated, without costs to either party.

Ordered accordingly.  