SUPREME COURT.

#### William Lupton, appellant, agt. Frederick W. Smith and James Lupton, respondents.

*General*Term, *First Judicial Department,*

*January,*1875.

*Manner of issuing attachments to enforce choses in action.*

An attachment in aid of an attachment brought to enforce choses in action, upon which an attachment has been levied, must be brought in the name of the sheriff or in the name of the debtor in the attachment.

The provision of the Code *(section*238), that actions may be prosecuted by the plaintiff in the attachment, do not authorize the plaintiff to bring • them in his own name, but enables him to take the control of such suits when brought by the sheriff, or to bring the same in the sheriff’s name on executing the bond of indemnity to the sheriff required by said section.

This is an appeal from an order setting aside an attachment against the property of the defendants. A motion was made on the part of the defendants to vacate the attachment, which was denied. A motion was then made for a reargument, which was granted; and on the reargument the attachment was set aside.

The attachment was granted on an affidavit of the plaintiff, which states that the defendants are indebted to James and John Fletcher in the sum of $5,000 and interest; that the defendants brought an action in this court against John and James Fletcher, in which a warrant of attachment was issued; that the sheriff demanded and obtained from the defendants a certificate, pursuant to section 236 of the Code, *262stating they were indebted to said James and John Fletcher in the sum of or about $5,000.

That the plaintiff has delivered to said sheriff the undertaking required by section 238 of the Code.

That the *defendants*are about to dispose of their property.

That the said James and John Fletcher both reside in England.

The undertaking delivered to the sheriff provides “ that the said plaintiff, William Lupton, Mil indemnify the said sheriff from and against all damages, costs and expenses on account thereof not exceeding $250.”

"It does not appear that any undertaking was delivered indemnifying the *defendants*or providing for the payment of their costs and all damages' which they may sustain, as required by section 230 of the Code.

*J. H. & B. F.*Watson, for appellant.

*First. No*affidavits were served on said motion to vacate said attachment, therefore the defendants must be confined to the ground taken by them that no cause of action is shown.

*Second.*There being no dispute about the facts, the only legal question in the case is whether the plaintiff can maintain this action in his own name, or whether it should have been brought in the name of the sheriff. The language of the Code is plain and explicit. “ *The actions, c&c., may be prosecuted by the plaintiff " (Code of Pro.,*§ 238 ; *Skinner*agt. *Stuart,*24 *How.,*489; 15 *Abbott,*391; 39 *Barb.,*206; *Millbank*agt. *Broadway Bk.,*3 *Abb.*[N. S.], 223 ; *Andrews*agt. *Glenville Co.,*11 *id.,*78; *O'Brien*agt. *Glenville Co.,*50 *N. Y. R.,*128; *The Mech. and Tr. Bank*agt. *Dakin,*50 *Barb.,*587; *id.,*51 *N. Y. R.,*519 ; *Thurber*agt. *Blanck,*50 *id.,*80).

*C. Bainbridge Smith,*for respondents.

*263*First.*The judge had no power or authority to grant the attachment in this action.

1. This section (238) does not authorize the plaintiff to bring an action in his name. The actions to be brought by the sheriff may be *prosecuted*by the plaintiff or under his direction; but this section does not expressly or impliedly confer upon the plaintiff any right to bring such actions in his name *(Code of Pro.,*§ 238).

2. There is no privity of contract between the plaintiff and the defendants’ debtors. There was no cause of action existing in favor of the plaintiff against the defendants *(Id.,*§ 229).

*Second.*The property attached by the sheriff, which is the subject of the present action, was in the custody of the law, and the sheriff is bound to preserve it; and when judgment is obtained, he is to apply the proceeds *(Id).*

*Third.*The action should have been brought in the name of the sheriff ( *Van Valkenburgh*agt. *Bates,*14 *Abb.*[N. S.] 314, *note; Mech. Bk.*agt. *Dakin,*50 *Barb.,*587; *id.,*51 *N. Y. R.,*519 ; *Thurber*agt. *Blanck,*50 *id.,*80; *Skinner*agt. *Stuart,*39 *Barb.,*206 ; *S. C.,*15 *Abb.,*391).

Davis, *P. J.*

— The appeal in this case presents a single question and that is, whether, under section 238 of the Code of Procedure, the plaintiff in attachment cases may, by giving the bond therein provided, prosecute in his own name the action which the sheriff is authorized to bring by sections 232 and 237 of the Code. This question has received consideration in various cases, and conflicting views have been expressed upon it. In *Skinner*agt. *Stuart*(39 *Barb.,*216) the point was not directly involved, because that was an action brought • by the plaintiff in attachment proceedings to compel the delivery of tangible property to the sheriff; but Clerke, J., in his opinion, discusses the effect of section 238, and expresses the conclusion that debts, credits and effects may be collected in actions brought in the name of the attaching creditor, on *264giving the bond. In *The Mechanics' Bank*agt. *Dakin*(50 *Barb.,*587) the question was not directly involved, but Leonard, J., examined it and came to a conclusion directly the reverse of that expressed hy Mr. Justice Clerke. In *Millbank*agt. *The Broadway Bank*(3 *Abb.*[N. S.], 223) the only question to which the attention of the court seems’ to have been called was whether, in an action pending in the name of the plaintiff, the bond to the sheriff could be filed *nunc pro time.*The 'court, Ingraham, J., held that, under sections 173 and 174 of the Code, the power to relieve from the consequences of such an omission existed. What would have been the views of the learned justice on the question now before us, if the point had been raised, is at most mere matter of inference from the order granted.

The point was only incidentally alluded to in *O'Brien*agt. *The Glenville Woolen Co.*(50 *N. Y.,*128, *and in*51 *N. Y.,*519), in which the court of appeals and the commission of appeals appear to be in conflict upon the question really involved in those cases. Mo where do we find the question so directly presented as in *Van Valkenburgh*agt. Bates, in the New York superior court at special term *(reported in note to O'Brien*agt. *The Mechanics and Traders' Tire lnsurance Co.,*14 *Abb.*[N. *S.],*314), in which Van Vorst, J., in a clear and able opinion which reviews all the authorities, comes to the following conclusions:

1st. That an action in aid of an attachment, brought to enforce choses in action upon which an attachment has been levied, must be brought in the name of the sheriff or in the name of the debtor in the attachment.

2d. That the provision of the Code *(section*238), that actions may be prosecuted by the plaintiff in the attachment, do not authorize the plaintiff to bring them in his own name, but enables him to take the control of such suits when brought by the sheriff, or to bring the same in the sheriff’s name on executing the bond of indemnity to the sheriff required by said section.

*265These conclusions have our full concurrence; and the reasons set forth by the learned judge in his opinion, as we think, lead irresistably to the result at which he arrived.

We adopt them as our own, and, in consequence, affirm the order appealed from, with ten dollars costs of the appeal, besides disbursements.

C. Donohue, J., concurs.