#### Thomas J. Dunn, as Sheriff, et al., Respondents, *v.*Ackee, Merrall *&*Condit, Appellant.

(Supreme Court, Appellate Term,

March, 1899.)

Action in aid of attachment execution — Failure to issue execution against the property attached.

The purpose of an attachment is to acquire and preserve property of the debtor so that it may be applied on an execution issued after the recovery of a final judgment, and where, after such recovery, the plaintiff issues an execution in the usual form and fails to issue one against the attached property as required by section 1370 of the Code of Civil Procedure, he will not be permitted subsequently to bring an action in aid of the execution against a corporation which he has certified in the attachment action that it is indebted to the defendant therein but which has refused to pay over said indebtedness when it was demanded under an execution expressed in the usual form.

Appeal from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, borough of Manhattan, for the first district.

G. A. Seixas, for appellant.

T. F. Hamilton, for respondents.

Leventritt, J.

On January 17, 1894, Walter M. Eosebault, one of the plaintiffs, commenced an action against the Saratoga Kissengen Spring Company, and therein procured a warrant of attachment against its property.

After service thereof upon the defendant corporation, it, on February 3, 1894, furnished to the sheriff a certificate acknowledging indebtedness to the defendant in the attachment proceeding in the'sum of $95.74, which sum the defendant herein did not pay over to the sheriff but still retains. The action against the Saratoga Kissingen Spring Company proceeded to judgment on the 9th day of February, 1894, and an execution thereon in the sum of $417.13 was issued. On April 3, 1894, demand was made of the defendant by the sheriff for the payment of the sum of $95.74, which was refused.

*759The execution was not directed against attached property as required by the Code (§ 1370), but was in the general form against personal and real property of the defendant.

On October 13, 1898, on motion of the plaintiff Rosebault, an order was obtained in the Supreme Court granting him, jointly with the sheriff of the county of Eew York, leave to bring an action in aid of the attachment for the collection and recovery from the defendant of the amount which it had acknowledged in its certificate.

A motion to vacate this order was denied, reserving to this defendant, however, the right to interpose in this suit any defenses which it might have.

Pursuant to the leave granted, this action in aid of the attachment was brought and recovery was had for the amount admitted in the certificate.

That disposition of the case was error. Under the facts disclosed the action in aid of the attachment could not be instituted after the entry of final judgment. The plaintiff Rosebault’s remedy was to issue against the attached property an execution in the special form prescribed by the Code. The enforcement of the judgment should have been by execution and by proceedings based upon it; and the attachment continued in force after judgment only for the purpose of giving effect to the lien acquired under it, and existing when the judgment was rendered. Lynch v. Crary, 52 N. Y. 181; Peetsch v. Sommers, 31 App. Div. 255. The purpose of an attachment is to acquire and preserve property of the debtor so that it may be applied on an execution issued after judgment recovered in the action. The plaintiff, having neglected to adopt the simple and obvious course open to him to enforce his rights against the defendant, cannot, after the lapse of years, invoke as the basis of an action, a warrant of attachment, which, for that purpose, had spent its force.

The judgment should be reversed.

Freedman, P. J., and MacLean, I., concur.

Judgment reversed, with costs to appellant. .