#### People ex rel. Paul G. Mehlin & Sons Piano Co., Relator, *v.*Edgar J. Lauer, as Justice of the Municipal Court of the City of New York, Respondent.

(Supreme Court, New York Special Term,

April, 1913.)

Attachment — warrant of seizure — Municipal Court of city of New York—■ undertaking — Code Civ. Pro., § 636.

Upon an application for a warrant of seizure,' in an action brought in the Municipal Court of the city of New York to foreclose a lien on a chattel, plaintiff need not show all of the matters and facts required by section 636 of the Code of Civil Procedure.

Where an undertaking tendered by plaintiff in such an action refers to the warrant as “ warrant of foreclosure ” instead of “warrant of seizure,” and recites that “the plaintiff would pay to the defendant all costs that may be awarded to him and all damages that he may sustain by reason of the foreclosure,” but fails to recite that plaintiff will indemnify the defendant if damages are suffered from the vacating of the warrant of seizure, the justice to whom it is presented for approval is justified in refusing to approve the same, and an application for a mandamus requiring him to sign the warrant will be denied.

Application for writ of mandamus directed to a justice of the Municipal Court requiring him to sign a warrant of seizure in an action to foreclose a lien on a chattel.

Henry A. Heiser, for relator.

Archibald R. Watson, corporation counsel (P. J. Walsh, assistant corporation counsel, of counsel), for respondent.

Platzek, J.

This is an application for a writ of mandamus directed to a justice of the Municipal Court in the city of New York, requiring him to sign a warrant of seizure in an action to foreclose a lien on a *439chattel. Section 138 of the Municipal Court Act provides : “ In an action to foreclose a lien upon a chattel, if the plaintiff is not in possession of the chattel, a warrant, commanding the marshal to seize the chattel, and safely keep it to abide the judgment, may be issued in like manner as a warrant of attachment may be issued, in an action founded upon a contract, and the provisions of law applicable to a warrant of attachment, issued out of the court apply to a warrant issued as prescribed in this act, and to the proceedings to procure it, and after it has been issued, except as otherwise specified in the judgment.” Section 207 of the Lien Law, a re-enactment of section 1738 of the Code, is substantially the same as section 138 of the Municipal Court Act; sections 635, 636 and the following sections of the Code of Civil Procedure regulate the granting of attachment in actions for breach of contract. The learned justice of the Municipal Court refused to sign the warrant of seizure in the case at bar upon the authority of Faraci v. Maller, 154 App. Div. *303;*which was an action in the Supreme Court to foreclose a mortgage on a chattel. In the Faraci case, construing section 207 of the Lien Law, Justice Woodward, writing for the court, said: • *“*The Lien Law practically adds a new case in which a warrant of attachment may be issued under the provisions of section 635 of the Code of Civil Procedure, and that sections 636 to and including 681 of the Code of Civil Procedure are applicable to the procuring of the warrant of seizure and to the subsequent disposition of the matter. * * * And so we are constrained to hold that in the present instance, the plaintiff having failed to show matters required by section 636 of the Code of Civil Procedure, was not entitled to the warrant of seizure, and that the learned court at Special Term was fully justified in setting aside the warrant.” In *440Wuertz v. Braun, 113 App. Div. 459, an action in the Municipal Court to foreclose a lien on a chattel under a contract whereby the title remained in the vendor until full payment, it was held that it was not necessary that all the extrinsic facts enumerated in subdivision 2 of section 274 of the Municipal Court Act in relation to an attachment need be shown to procure a warrant of seizure. Mr. Justice Jenks wrote that “in a case like unto that' at bar, the seizure is made of a chattel which by the contract of the parties belongs to the plaintiff until full payment therefor, and may be retaken by him upon default therein. Thus the plaintiff by such process simply impounds the chattel to abide the judgment.” Blake v. Crowley, 44 Hun, 344, is a case where a warrant was issued in an action brought in the Supreme Court to foreclose a lien upon a chattel, pursuant to section 1738 of the Code of Civil Procedure. • Presiding Justice Barnard said: “The provision in section 1738, that the proceedings to procure the writ, and those after its procurement shall be similar to the provision in respect to attachment, was not intended to require the affidavit to state that the claim is above all counterclaim as in section 636 of the Code. This section only applies to attachments in actions to recover damages for breach of contract. * * * Breach of contract has a definite meaning and •does not include the foreclosure of a chattel mortgage, even though there was a failure to pay according to promises made. ’ ’ The precise question now under consideration is whether the plaintiff in an application for a warrant of seizure must show all of the matters and facts required by section 636 of the Code. This question has not been reviewed or decided by the Appellate Division in this department or by the Court of Appeals. Apprised of these conflicting decisions the Justice of the Municipal Court followed the rule laid down in *441the latest, the Faraei case, and having done so he cannot be held to have acted arbitrarily, unreasonably or without due deliberation in refusing to sign the warrant of seizure. The court is unable to agree with the interpretation of the statute in the Faraei case, that all of the requirements of the Code relating to the granting of attachments in actions for breach of contract are applicable- to a suit to seize and impound a chattel, but is impelled to accept the construction of the statute in the earlier cases of Wuertz v. Braun and Blake v. Crowley, *supra.*The statute prescribes as a prerequisite to the granting of a warrant of seizure that a written undertaking running to the defendant, approved by the court, must be given, to the effect that if defendant recovers judgment in the action *or the warrant of attachment is vacated*the plaintiff will pay all costs which may be awarded to the defendant *and all damages which he may sustain by reason of the vacating of the warrant.*The undertaking tendered in this case refers to the warrant as ‘ *‘*warrant of foreclosure ” instead of “ warrant of seizure.” It also recites that “ the plaintiff would pay to the defendant all costs that may be awarded to him and all damages that he may sustain by reason of the foreclosure.” It fails to recite that the plaintiff will indemnify the defendant if damages are suffered from the vacating of the warrant of seizure. The undertaking being improper in form, the justice to whom it was presented was justified in refusing to approve it. Mandamus only lies where there is a clear legal right thereto, and it is not its office to control judicial discretion or judgment. The moving papers are defective in other respects, but it is unnecessary to consider such defects at this time. It follows that this application must be and is denied.

Application denied.