
    SUPREME COURT.
    Oliver W. Buckingham and another, plaintiffs, appellants, agt. John A. Swezey and another, defendants; Seth M. Milliken and others, respondents.
    
      Attachment—Wa/rrant against interest of debtor who is a copartner where his 'firm is insolvent— Lien of attachment against property of copm’tner other than firm property — Refusal to discharge such attachment merely beca/iise no lien on fvrm pi'operty—Attachment allowed to remain for whatever it is worth against property of individual pa/rtner—Subsequent attaching creditors; Gode Givil Procedure, § 682.
    Where the plaintiffs in an action against two defendants, who were co-partners, obtained a warrant of attachment against the property of one copartner only, and another firm of subsequent attaching creditors in another action against the same defendants, applied for and obtained an order of special term vacating such warrant of attachment on the ground that it appeared on the argument of the motion to vacate, that the warrant of attachment was issued against the property of one defendant only, on the ground that he had absconded; also, that the firm against whom the action was brought was insolvent and unable to pay their debts in full:
    
      Meld, the attachment cannot be discharged merely because no lien on the firm property had been thereby acquired; plaintiffs are allowed to retain their attachment in such case for whatever it is worth.
    
      
      Held, also, that neither the cases of DonneU agt. Williams (21 Hun, 218); and Stmts agt. Bristow (73 H. T., 264), supports the point “that in an action against a firm consisting of two members, if a warrant of attachment he granted against one upon a debt due by the firm, and the firm is insolvent, the interest of the party proceeded against is nothing and no lien is thereby acquired.”
    
      Donnell agt. WiUiams explained, and Staats agt. Biistow, distinguished.
    
      First Department, General Term, May, 1881.
    Appeal from special term order vacating attachment.
    This is an appeal from an order of special term vacating an attachment upon the application of subsequent attaching creditors, Milliken and others.
    Plaintiffs were copartners in the business of selling domestic cotton goods, Leonard street, in the city of Hew York. Defendants were similarly engaged. The firm of Milliken & Co. were also in the same business in the same city. Plaintiffs brought this action against defendants, and obtained an attachment. Milliken and others also brought another action against the same defendants.
    The attachment obtained by plaintiffs herein was against the property of defendant Swezey alone and on the ground that he was an absconding debtor. The motion by Milliken and others to vacate assumed that the attachment was granted against the property of both defendants, and upon the ground that they were both alleged to be non-residents. - The moving affidavits were directed to such erroneous suppositions. The, facts that defendant Swezey had forged heavily; had left his business and his family and absconded from and remained beyond the jurisdiction of the court, were shown to have been facts of public notoriety, undisputed, admitted by his copartner, his wife and his social and business friends, at and before the time the attachment was issued. Ho opinion was given or filed in the court below, but the order recites as follows : “ And it appearing on the argument that the warrant of attachment was issued only against the property of the defendant Swezey, on the ground that he had absconded, and leave being thereupon granted to argue the motion on the ground that at the date of granting of the warrant of attachment the firm of Swezey & Dart herein was insolvent and unable to pay their debts in full, it is,” &c., “ Ordered, that the warrant be vacated.” It also appears that “ the defendant Swezey left property in this city to the extent and value of upwards of fifty dollars.” The court at special term vacated the attachment in the action of Buckingham and Paulson, subsequent attaching creditors, and from that order an appeal was taken to the general term.
    
      Chauncey B. Ripley,
    
    on behalf of appellants Buckingham and Paulson, Jr., made and argued the points following :
    I. The ground that “ the firm was insolvent at the date of granting of the warrant,” is not tenable. “ Plaintiffs were entitled to retain their attachment as to the individual property of the defendant (Swezey) for whatever it was worth, and the court could not discharge it absolutely merely because no lien upon the film property had been thereby acquired. The court might, had the attachment been against the firm, set it aside as against Dart, and leave the law to take its course (Donnell agt. Williams, 21 Hun, 216, 219). Such is declared to be the law by the prevailing opinion of the general term of this court (Id., 219); and the opinion suggesting an opposite view {Id., 218), was not approved by a majority of the court. The order vacating the attachment in Donnell agt. Williams (supra), was sustained, but on other grounds; Staats agt. Bristow (13 N. Y., 264) is there held not to apply where the attachment is against the individual property of one member of a copartnership, as in this case.
    II. The granting of the motion in' the court below on a ground not suggested by any of the moving papers, and of which plaintiffs had no notice whatever, was in disregard of the express provisions of the statute (Code Civil Procedure, sec. 180), and of the rule of this court {Rule 31); it is not an approved practice, because it deprives one party of all opportunities for preparation on his part, and opens the door for unjust advantage to his adversary. Compare Fry agt. Bennett (16 How., 385, 396); Miller agt. Kent (60 How., 388, 389).
    III. The attachment of the respondents was void, under their theory, on the same ground recited in the order appealed from, as appears by the papers (fol. 9, p. 4; fol. 4). . If the so-called subsequent lien of Milliken and others was no lien, then they had no standing in the court below; the provision allowing a subsequent attaching creditor who has acquired a lien to apply to vacate, contemplates a valid lien of necessity (Code Civ. Pro., sec. 682); and under the familiar rule of practice that he who commits the first error should not prevail, the order below should be reversed (People agt. Booth, 32 N. Y., 397), even if respondent’s theory is correct.
    IT. The order below should be reversed with costs below, and costs and disbursements of this appeal.
    
      John J. Adams (attorney and of counsel) for subsequent attaching creditors, respondents.
    I. The warrant of attachment was granted against the property of Swezey only, and the firm of which he was member having made an assignment of their property, there was no interest that was subject to levy under the warrant. In an action against a firm consisting of two members, if a warrant of attachment be granted against one of the members upon a debt due by the firm, and the firm is insolvent, the interest of the partner proceeded against is nothing, and no lien is. acquired thereby (Donnell agt. Williams, 21 Hun, 218). This result has been distinctly declared in the case of Staats agt. Bristow (73 N. Y., 264).
    II. It is immaterial that the motion is made on behalf of subsequent attaching creditors (Blossom agt. Estes, 10 Weekly Dig., 428).
    III. The order vacating the attachment was properly granted and should be affirmed.
   Brady, J.

The attachment obtained by the plaintiffs, Buckingham and Paulson, Jr., was against the property of the defendant Swezey alone, and on the ground that he was an absconding debtor. Milliken and others who were subsequent attaching creditors moved to discharge the attachment and were successful. No opinion was delivered when the motion was decided, but the order declarative of the judgment of the court contained the following, which seems to be a statement of the grounds on which the court rested:

And it appearing on the argument that the warrant of attachment was issued only against the property of the defendant Swezey, on the ground that he had absconded, and leave being thereupon granted to argue the motion on the ground that at the date of granting of the warrant of attachment the firm of Swezey dk Da/rt. herein was i/nsolment and unable to pay their debts in full, it is,” &c., “ ordered that the warrant be vacated.” And the point presented by the respondent’s counsel is, that in an action against a firm consisting of two members, if a warrant of attachment be granted against one upon a debt due bythe firm, and the firm is insolvent, the interest of the party proceeded against is nothing, and no lien is acquired thereby. And he assumes that the legal proposition applicable to a question, such as presented herein, and entitling his clients to have the attachment vacated, was enunciated in the case of Donnell agt. Williams (21 Hun, 218), sustained by the case of Staats agt. Bristow (73 N. Y., 264). That case is not in favor of his clients, however. Justice Barrett wrote the prevailing opinion of the court, inasmuch as justice Davis concurred' with him, and it was said, in his opinion : Were the case free from other difficulties the plaintiff Donnell would be allowed to retain his attachment as to the defendant Burnie for whatever it was worth, and we could not discharge it merely because no lien on the firm property had been thereby acquired.”

Justice Davis having concurred in this view, as already suggested, it is considered to be controlling on this.appeal, and the order appealed from must therefore be reversed.

The case of Staats agt. Bristow (supra), which was referred to in the case of Donnelly agt. Williams (supra), and also by the respondent on this appeal, is not in point upon the question before us. The court of appeals in that case declared that a purchaser, under an execution against the right, title and interest of a partner in the partnership assets, against whom an attachment had been issued, the firm being insolvent, acquired nothing by the purchase. And it would seem, from the opinion delivered, that the execution considered pointed at-property which the defendant had at a time subsequent to the issuing of the attachment and the levy under it, namely, the 9th of December, 1874, and subsequent also to the assignment made by the firm for the benefit of their creditors, which was made intermediate the issuing of the attachment and the execution, namely, on the 4th of December, 1874, the attachment having been issued on the 30th November, 1874. Whether the intervention of the assignment had any controlling influence upon the court it is difficult to say, from the examination of the report of that case; but, nevertheless, it is not an authority for the proposition that the attachment should be discharged under the circumstances disclosed in this case.

The order should be reversed, with ten dollars costs and the disbursements; but, under the circumstances, to abide the event.

I concur, Chas. Daniels.  