
    LYNCH against CRARY.
    
      Court of Appeals;
    
    February, 1873.
    Attachment.— Execution".—Effect of Judgment.
    After judgment has been entered, an attachment issued as a provisional remedy in the action cannot be levied.
    The attachment continues in force after judgment only for the purpose .of giving effect to the lien acquired under it, and existing when the judgment was rendered.
    Appeal- from a judgment.
    James Lynch, sheriff of New York (for whom, on his death pending the action, Margaret Jane, his administratrix, was substituted as plaintiff), sued George X>. Crary and Henry Pike, in the New York superior court, alleging that in 1863, one Fuller commenced an action against Stewart & Bramson, on contract, and issued a warrant of attachment therein as a provisional remedy, which was delivered to this plaintiff for execution. That defendants, Crary and Pike, had, at that time, in their possession, a considerable sum of money and goods and things in action belonging to the debtors in attachment, Stewart & Bramson; and that this plaintiff, the sheriff, by virtue of the attachment, attached in their hands on August 31,1863, such property; that they refused to give him a certificate of the property, &c., belonging to the debtors and held by them. That subsequently Fuller recovered a judgment in the attachment suit, and that execution had been executed thereon. That defendants refused to apply the property in their hands to the payment of the judgment and execution, wherefore this action.
    
      The referee, the Hon. Murray Hoffman, to whom this action was referred, found that Puller, recovered the judgment mentioned in the complaint, on August 31, 1863, against William Stewart and Henry Bramson, for the sum of two thousand one hundred and fifty-one dollars and eleven cents, upon a demand against them as partners, under the firm name of Stewart & Go. That upon the commencement of such action, an attachment was duly issued directing the sheriff to attach the property of the said Stewart & Bramson, and was delivered to the then sheriff, the present plaintiff, on August 31, 1863, to be executed according to law, and that on the same day he duly and in due form of law attached the sum of seventeen hundred and forty-nine dollars—a debt due by the present defendants to Stewart & Bramson, which sum was at the time of such attachment, the money of and belonging to Stewart & Bramson. The referee further found that there was due upon such judgment, for principal and interest, the sum of one thousand eight hundred and thirty-three dollars and forty-eight cents; that the sum of one thousand seven hundred and twenty-nine dollars and interest, exceeds the amount due on such judgment, and that, as a conclusion of law, the plaintiff is entitled to recover from the defendants, the sum of one thousand eight hundred and thirty-three dollars and forty-eight cents, with costs.
    The defendants excepted to the findings by the referee, that the sheriff, the present plaintiff, duly and in due form of law attached the sum of one thousand seven hundred and forty-nine dollars ; that this sum was at the time of such attachment the money of and ' belonging to the firm of Stewart & Bramson ; and that there was due upon such judgment, for principal and interest, the' sum of one thousand eight hundred and thirty-three dollars and forty-eight cents, and that the " sum of one thousand seven hundred and twenty-nine dollars, and interest, exceeds the amount due upon such judgment. They also further excepted to the conclusion of law of the referee, that the plaintiff was entitled to recover from the defendants one thousand eight hundred and thirty-three dollars and forty-eight cents, and costs.
    It appeared that the attachment was delivered to the sheriff at 12.55 p. m., and the judgment entered up, and an execution issued upon the judgment in the cause at 2.49 p. m., all on August 31, 1863. There was some conflict and obscurity of evidence, as to the precise time when the attachment was served; but the referee found as the best result of the evidence, that it was in the afternoon of the same day, after 3 p. si., and that no action was taken, or could be taken under the execution at that time ; that it was not then produced, even if the deputy had it in Ms hands, and that the goods were levied upon under the attachment, and the moneys ought to be attached under that warrant.
    The question raised by the appeal, was whether the recovery of the judgment and actual existence of an execution in the sheriff’s hands, did not for the purpose of a levy supersede the attachment previously delivered to him.
    
      The superior court, at general term, on appeal from a judgment entered on the referee’s report, held that it would conflict with what appears to be just, and to be in accordance with the* provisions of the Code as to attachments, to hold that the recovery of judgment and delivery of execution to the sheriff superseded an attachment previously issued and which he might at that moment be proceeding to enforce; but on the contrary, an attachment issued prior to judgment and execution, if valid and properly served, may be operative as the basis of an action by the sheriff to enforce it after judgment and recover the property (Sedgwick, J., dissented).
    From the judgment entered on this decision the defendants appealed to the court of appeals.
    
      A. A. Redfield, for the defendants, appellants.
    
      W. W. Niles, for the plaintiff, respondent.
   By the Court.—Andrews, J.

No attempt was made by the sheriff to execute the attachment in the action against Stewart and Bramson, upon their debt against these defendants until after judgment in the attachment suit had been entered.

The Code prescribes the manner of executing an attachment upon property incapable of manual delivery.

To attach a debt owing to the defendant in the attachment, the sheriff is required to leave with the debtor a certified copy of the warrant of attachment, together with a notice showing the- property levied on (Code of Pro., § 235).

No lien is acquired under the attachment until actual service thereof in the manner required by the statute.

The lien is created by the levy and seizure, and the lodgment of the warrant in the hands of the officer is ineffectual of itself to create any charge upon the property of the defendant (Rodgers v. Bonner, 45 N. Y., 379).

Neither the officer nor the attaching creditor had acquired any interest in or lien upon the debt, due. to Stewart and Bramson under the attachment, at the time the judgment was recovered against them. It had not then been levied.

The right of a sheriff holding an attachment' to bring an action to recover a debt owing to the defendant, depends upon his having acquired a lien upon the debt under the process in- his hands.

The action in snch case is authorized as an auxiliary remedy to enable the sheriff to enforce the lien, and to reduce to possession the property attached.

He cannot maintain an action to remove a fraudulent obstruction to the execution of the process, or to subject property to attachment not already held under it (Lawrence v. Bank of the Republic, 35 N. Y., 320; Thurber v. Blanck, Ct. of App., Nov., 1872).

The power to levy the attachment against the property of Stewart and Bramson did not survive .the recovery of the judgment against them. Its power was spent so far that no new right or interest in the property of the defendants could be acquired under it.

This will appear from a consideration of the provisions of the Code, and the conclusion is in harmony with the general object of attachment laws.

The attachment given by the Code is to be issued “in an action” (§ 227).

The plaintiff procuring it is required, within ten days after it is issued, to file the affidavits on which it was granted in the clerk’s office of the county in which the action “is to be tried” (§ 229).

He is required, before the warrant is issued, to execute a bond to the effect that if the defendant “ recover judgment,” &c. (§230).

It is manifest from these provisions that an attachment can only issue before judgment.

By section 227 the attachment is issued “as a security for the satisfaction of such judgment as the plaintiff may recover.”

By section 231, the must require the sheriff to ' attach the property of the defendant within his county, ■ or sufficient thereof to satisfy the plaintiff’s demand, which must be stated “in conformity with the complaint, &c.”

By section 232, the sheriff is directed to keep the property seized by him, or the proceeds of such as shall have been sold, to answer “any judgment which may be obtained in such action.”

By section 237, in case judgment be entered for the plaintiff in the action the sheriff is directed to satisfy the same “out of the property attached by him,” in the manner therein prescribed, and by the third subdivision of this section, special authority is given to re-seize, after judgment, property which had been attached, but which had passed from the hands of the sheriff without having been sold or converted into money.

It sufficiently appears from these provisions of the Code, without adverting to others, that an attachment is designed as a preliminary proceeding for the seizure of the debtor’s property, so that it may be held to await the issue of the action, and to secure the payment of the judgment which may be obtained therein by the plaintiff.

That this is the'scope and purpose of the remedy by attachment is apparent also from the consideration that it can issue only in those actions in which, by reason of the non-residence of the defendant, or the fraudulent intent of the debtor, there is danger that the final process for the collection of the plaintiff’s demand will be obstructed or rendered ineffectual.

If the attachment can be levied after judgment, the restriction against issuing it after that time would seem to be unnecessary.

. The attachment is not discharged by the judgment against the defendant, but it is operative thereafter to hold the lien acquired thereby until execution • issues, and to enable the sheriff to repossess himself of the ■property which has passed from his possession, and to collect and convert the equitable assets upon which it has been levied (§ 237).

The remedy for the enforcement of the judgment is by execution, and by proceedings based upon it; and the attachment continues in force after judgment only for the purpose of giving effect to the lien acquired under it, and existing when the judgment was rendered.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

■All-the judges concurred, except Allen, J., who did not hear the argument.  