
    VAN WYCK against BAUER.
    
      Supreme Court, First District; Special Term,
    
      October, 1870.
    Foeeclosuee. —Attachment.
    An attachment cannot be issued as a provisional remedy under the Code of Procedure, as amended in 1866, in an action for the foreclosure of a mortgage.
    Motion to vacate an attachmem.
    This action was brought by Washington Yan Wyck against Bertha Bauer and others, for the foreclosure of a mortgage on real property. The plaintiff obtained the issue of an attachment against defendant’s ' property on affidavits, and defendant moved to vacate it.
    
      LapaugTi & Ames, for the motion.
    
      
      Benjamin A. Willis, opposed.
   Cardozo, J.

The attachment in this case must be vacated: First, because this is not an action for the recovery of money only. The case of Corson v. Ball, 47 Barb., 453, was decided before the amendment of 1866, when the Code authorized an attachment in an action for the recovery of money, without the limitation .that the action must, as is now provided, be for the recovery of money only. That case, therefore, is inapplicable to the statute as it now reads, and as this action seeks other relief, before there can be any judg-. ment for money, it is not an action for the recovery of money only, and, therefore, an attachment cannot issue.

If this difficulty did not exist, I think there would be much trouble in holding that the affidavits make a case of fraudulent disposition of the defendants’ property. The ground assumed in one branch of the affidavit, that the bond and mortgage have been wrongfully converted by the defendants, will not assist to support the attachment, because the action is not for such wrongful conversion.

In any view, of the case, the attachment must be vacated.  