#### The Glenville Woolen Company *vs.*Ripley.

*1.*Where a sheriff, after the levy of attachments by him, commences an action in the name of the defendant in the attachment suits, under section 238 of the Code, against a debtor of the defendant, to recover the debt due from the former to the latter, and the defendant in such action admits the canse of action, but claims a set-off thereto, which the referee' decides to allow, and is about to render judgment against such defendant, in favor of the sheriff, for the balance, the attaching creditors ought not to be brought into that action as parties, on motion, and cannot he substituted as defendants for the purpose of determining their respective-priorities.

2. The only proper course for the defendant, to avoid further litigation, is to allow the action to go to judgment and pay the judgment, leaving the creditors to litigate as they may he advised, for the fund.

(Before Monell, J., at Special Term,

November, 1866.)

The controversy in this case was between different contending creditors of the G-lenville Woolen Company, a foreign corporation, the nominal plaintiff. The two contestants were Messrs. Consinery & Craig, and Messrs. Jasper, Corning & Co. The last named commenced their suit in October, 1855, and obtained therein an attachment against the property of the Woolen Company, which was served upon the defendant, Ripley, with the view of attaching the debt due from him to such company. In that suit they recovered judgment in Eebruary, *1856,*(for $166*3.78.) Consinery & Craig commenced their suit against the defendant in December, 1855, in which they procured an attachment which was served on Ripley, hut did not obtain judgment thereon until December, 1863, (for $31,339.81.) Upon that judgment an execution was returned unsatisfied, and,-, upon supplemental proceedings thereupon instituted, a receiver of the property of the Woolen Company was appointed.-.

After the levy of one or both attachments by service on Ripley, the sheriff, under section 238 of the Code, commenced this action, in the name of the company, to recover from the defendant the debt due from him to it. The defendant admitted the cause of action, but claimed a set-off thereto. The question was tried by a referee, who decided to allow the set-off, and was about to render judgment against *531the defendant in favor of the sheriff for the balance, which the defendant was ready to pay. A motion was made thereon to have Consinery & Craig and Corning & Co. made parties to the action, for the purpose of determining their respective priorities; it being conceded that the defendant had no further interest in the question.

Monell, J.

The priority of the contesting creditors cannot be determined upon this motion; a motion for some other relief, or possibly an action for such purpose, may be necessary. Should the money due from the defendant come into the sheriff’s hands, he will hold it under one or both of the attachments, upon which the question will properly come up, whether Corning & Co.’s attachment and execution, or the receivership under the Consinery & Craig judgment, will have the preference. The sheriff, for his own protection, could interplead the creditors or apply to the court for instructions, or the latter could probably themselves become the actors and have the question determined by motion or action. The 122d section of the Code is wholly inapplicable to this case.

It would not be proper to bring the creditors into this action as defendants, as that would leave the defendant still a party, and postpone the payment by him of an admitted sum, until the determination of a controversy between his co-defendants, which might continue for many years.

The only course for the defendant, therefore, if he wishes to avoid farther litigation, is to allow the action to go to judgment, and then to pay the judgment, leaving the creditors to litigate as they may be advised, for the fund.

I am satisfied that the attaching creditors ought not to be made parties to the action, and cannot be *substituted*for the present defendant. And I cannot see any difficulty, on payment to the sheriff of the amount due from the defendant, in settling the rights of such creditors, by motion or otherwise.

The motion must be denied. (a)

(a)

Affirmed at general term, on appeal, December 7, 1867,