
    SUPREME COURT.
    The Steuben County Bank agt. John L. Alberger, Samuel F. Alberger, impleaded, &c., and Louisa F. Alberger a creditor.
    
      Attachment—motion by judgment creditor to mcate—right of plaintiff to oppose by new affidavits—Code of Civil Procedure, sections 682, 683.
    Where a motion is made by a judgment creditor of defendant to set aside plaintiff’s attachment, granted prior to recovery of judgment (upon an affidavit showing that she has acquired a lien upon the property of defendant), because of the insufficiency of the affidavits on which it was granted, the plaintiff may offer new proof, by affidavits, sustaining the grounds for attachment recited in the warrant.
    Por this purpose a lienor must be regarded as included in the term “defendant” as used in the first clause of the second sentence of section 683.
    A motion to vacate an attachment on the ground of the insufficiency of the affidavits on which it was granted, can be made by a defendant only. A mere lienor can only move to vacate upon affidavits on his own part, in which case the plaintiff may oppose suiSh motion by new proofs, limited, however, to such proof as tends to sustain the ground for the attachment, recited in the warrant, except in the case specified in the last clause of section 683.
    
      It seems, that the new Code is to permit a lienor to vacate an attachment which stands in his way, on any ground formerly open to him, or upon affidavits controverting those upon which the attachment was issued, but not upon the ground of irregularity.
    
      Fourth Department, General Term, June, 1878.
    Appeal from an order made at Monroe special term, February 5, 1878, denying the motion made on behalf of Louisa F. Alberger, a judgment creditor of Samuel F Alberger, to vacate an attachment as to the property of, Samuel F. Alberger.
    Plaintiff recovered judgment in this action December 4, 1877, for $14,087.23. The referee rendered his decision in favor of plaintiff, November 28, 1877, and on the 29th, day of November, 1877, an attachment was issued by the county judge of Steuben county against the property of Samuel F. and John L. Alberger, upon affidavits tending to show that they were about to transfer their joint and individual property to defraud the plaintiff; and this ground was duly recited in the warrant. . '
    On the 30th day of November, 1877, the sheriff of Niagara county seized a large amount of the real and personal property of the defendant, Samuel F. Alberger, and still holds the same. On the 4th day of December, 1877, judgment in this action was entered and docketed in Steuben county, and on the same day a transcript thereof was docketed in Niagara county, and an execution issued thereon and delivered to the sheriff of Niagara county.
    On the 3d day of December, 1877, the day before the time for entering plaintiff’s judgment, but three days after the levying of plaintiff’s attachment, the defendant, Samuel F. Alberger, conveyed all his real estate, amounting in value to about $10,000, to his mother, Louisa F. Alberger, and on the same day confessed a judgment in her favor for $9,760, which was docketed in Niagara county clerk’s office on the morning of December 4, 1877, a few hours before plaintiff’s judgment was docketed in that county, and an execution on Mrs. Alberger’s judgment was, at the time of docketing her judgment, issued to the sheriff of Niagara county. On the 21st of December, 1877, a motion was made upon affidavits ©f Louisa F. Alberger and others on behalf of the defendants, John L. and Samuel F. Alberger, before Mr. justice Dajhels, to vacate said attachment, which was denied. Louisa F. Alberger then moved as a judgment creditor of Samuel F. Alberger upon an affidavit setting out her judgment, &c., to vacate the attachment as to the property of Samuel F. Alberger for alleged insufficiency of the original affidavits upon which the attachment was granted. In opposition to this motion the plaintiff produced and read upon the argument various affidavits, deeds and papers, by which the intent of the defendant, Samuel F. Alberger, to dispose of his property was overwhelmingly proved.
    The facts so alleged were the same used to oppose the motion made on behalf of defendants before judge Daniels, as before stated. They show that the said transfer to Mrs. Alberger, and the confession of judgment to her, were without any consideration. The confession of said Samuel F. Alberger under oath, that the sole purpose of making them was to prevent the collection of plaintiff’s debt; and that said defendant intended, in case he was unsuccessful in the action, to make such disposition of his property within the four days after the decision, before judgment could be entered upon the referee’s report, under the new Code, as would prevent plaintiff from reaching it. The court, at special term, allowed these additional affidavits and papers to be used in opposition to the motion, and denied the motion without deciding whether or not the original affidavits were insufficient.
    The following is the opinion of the special term.
    
      Monroe Special Term, January, 1878,
    
      A. 0. Rice, for motion.
    
      J. K. ParT&hwst, opposed.
   Angle, J.

The creditor moves, under section 682 of the Code of Civil Procedure, upon an affidavit showing that she has acquired a lien upon the property of defendant, S. F. Alberger, to vacate plaintiff’s attachment because of the insufficiency of the affidavits on which it was granted. In opposition, the plaintiff offers new proof, by affidavits sustaining the grounds for attachment recited in the warrant. The ' counsel for the creditor objects to such new proofs insisting that as the affidavit on his part does not controvert any of the facts or grounds on which the warrant issued, as they appear from the affidavits on which it was grounded, the plaintiff cannot resist this motion with new affidavits to sustain those grounds.

The section, 683, of the Code of Civil Procedure provides that the motion “ may be founded only upon the papers upon which the warrant was granted * * * * * or it may be founded upon proof by affidavit on the jiart of the defendant in which case ***** it may be opposed by new proof by affidavit on the part of the plaintiff.”

In applying the second sentence, or alternative, in section 683, 1 must hold this as a motion “ on the part of the defendant ” within the meaning of that sentence, for if it be not so construed, a lienor has no right to move on affidavits, and while the construction gives him the right so to move, it also gives the plaintiff the right to oppose such motion by new proofs. This motion, then, is founded on proof by affidavit on the part of the defendant, and the fact that such proof is limited to simply showing that the person moving has a lien which entitled him to make a motion, does not, in my opinion, limit the opposing affidavits on the part of the plaintiff to the same matter, but it opens to the plaintiff the right to sustain, by further affidavits, the warrant on any ground recited in it.

The affidavits on the part of the plaintiff are, therefore, admitted and they sustain the warrant even if the original affidavits did not ( a question I do not decide ).

The motion is denied, but as the question is a new one, it is without costs.

The following is the opinion rendered at general term :

’Smith, J.

Mrs. Alberger’s motion at special term to vacate the plaintiff’s attachment, was founded upon an affidavit stating that after the property of Samuel F. Alberger was attached by the plaintiff, she acquired a lien upon it by attachment, and the ground of her motion was the alleged insufficiency of the affidavits on which the plaintiff’s attachment was issued. In opposition to the motion, the plaintiff offered new proof, by affidavits, sustaining the ground for attachment alleged in the warrant. The counsel for Mrs. Alberger objected to such new proof, insisting that as the affidavit on her part did not controvert any of the facts' or grounds on which the plaintiff’s warrant issued, the plaintiff could not resist the motion with new affidavits.

The additional affidavits taken in connection with the original affidavits on which the plaintiff’s attachment was issuecl, established, beyond doubt, the ground recited in the warrant of attachment, that the defendants, John F. and Samuel L. Alberger, were, at the time of issuing said warrant, about to assign, dispose of, or secrete their property with intent to defraud their creditors. If, therefore, the additional affidavits were properly received, it will follow that the order appealed from should be affirmed. The question of the admissibility of the new affidavits involves the construction of section 683 of the Code of "Civil Procedure, relating to the attachment of property, read in connection with section 682.

Section 682 provides that “ The defendant, or a person who has acquired a lien upon, or interest in, his property, after it was attached, * * * may apply to vacate or modify the warrant,” &c. Section 683 provides that “An application, specified in the last section, may be founded only upon the papers upon which the warrant was granted; in which case, it must be made to the court, or, if the warrant was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the warrant was granted by a judge out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial. ”

The meaning of these sections, so far as the question presented is concerned, is not entirely clear. The counsel for Mrs. Alberger contends that the right to attact the validity of an attachment by controverting the facts stated in the affidavits on which it was granted, is confined to the defendant in the action and that, consequently, the plaintiff has no occasion to resort to new proof in support of his attachment, and should not be permitted to do. so, except in the case of a motion by the defendant to set it aside upon controverting affidavits; that the right of a lienor, not a defendant, to attack the validity of the attachment, is limited to a motion to vacate it because of the insufficiency of the affidavits on which it was granted; and that he would be deprived of his right to move on that ground, if the reading of an affidavit on his part, showing that he is such lienor, which is necessary to give him a standing in court, entitles the plaintiff to support his attachment by fresh affidavits.

The construction contended for on the part of the plaintiff is, that a motion to vacate an attachment on the ground of the insufficiency of the affidavits on which it was granted, can be made by a defendant only; and that a mere lienor can only move to vacate upon affidavits on his own part.

The latter view was adopted by the judge who held the special term, and we are inclined to think it is correct. Section 682, gives, in general terms, the right to the defendant, or a lienor, to move to vacate, &c., the attachment, without prescribing, in what way, or before what court or officer it shall be done. Tjrose particulars are provided for by the next section, which manifestly relates to a motion by a lienor, as well as to a motion by the defendant. The subject of its provisions is “ an application, specified in the last section. ” It provides for two classes of applications; one, founded only upon the papers upon which the warrant was granted; the other founded upon proof, by affidavit, on the part of the defendant. An application of the first class, cannot be made by a lienor, not a defendant, for the reason that, as he cannot move, without showing that he is a lienor, which can only be done by affidavit, he cannot found a motion solely upon the papers upon which the warrant was granted. ' As, then, a lienor can only move upon proof by affidavit on his own part, his application must necessarily be in the second class, and it may be opposed by new proof, by affidavit, on the part of the plaintiff, limited, however, to such proof as tends to sustain the ground, for the attachment, recited in the warrant, except in the case specified in the last clause of the section". For this purpose, a lienor must necessarily be regarded as included in the term “ defendant ” as used in the first .clause of the second sentence of section 683, and that was probably the intention of' the legislature. Otherwise, the right of a lienor to move, given by the preceding section, is cut off.

Under the former Code, it was held that since the issuing of a warrant of attachment was no longer the commencement of a legal proceeding, but was merely a provisional remedy in an action, the sufficiency of the affidavits was not a jurisdictional question, but a mere question of regularity in issuing process in the progress of an action (Morgan agt. Avery, 7 Barb., 656) which none but a party to the action, injuriously affected by it could take advantage of (In the Matter of Griswold, 13, id., 412; Isham agt. Ketchum, 46, id., 43, per Sutherland, J.). Under the old Code, however, a subsequent attaching or levying creditor, could move to vacate an attachment on the ground of fraudulent collusion between the plaintiff and defendant. It is hardly reasonable to suppose that the new Code was intended to cut off that right, and at the same time to give to a lienor the right, previously denied to him, of moving to set aside an attachment for irregularity in an action to which he is not a party. And yet, the construction contended for by the appellant’s counsel would work that result. We think the new Code is to permit a lienor to move to vacate an attachment which stands in his way, on any ground formerly open to him, or upon affidavits controverting those upon which the attachment was issued, but not upon the ground of irregularity.

These views render it unnecessary to consider the other questions argued by counsel, and lead to an affirmance of the order.

Order affirmed, with ten dollars costs and disbursements.

Mullin, P. J. and Talcott J., concurred.  