Greenleaf v. Mumford. or was not made to the defendant, is not before us, we must assume that the case called for the allowance made. The order appealed from should be reversed. All the judges concurred. Order reversed. GREENLEAF against MUMFORD. Supreme Court, First District; General Term, Apr., 1868. ACTION IN AID OF ATTACHMENT.-LEVY ON BANK DEPOSIT. A warrant of attachment having been issued against M., the sheriff claimed to levy it upon money deposited in bank alleged to belong to M.; but the bank refused to pay over the deposit, under the attachment, for the reason that the money had in fact been deposited by O., who had drawn checks against it which the bank had certified. It appearing that O. still held the checks unindorsed, the attaching creditors brought an action to prevent O. from endorsing and the bank from paying them, and to procure the fund to be applied to discharge their demand against M. Held, that the action could not be maintained, even if the money was the property of M., and was deposited in the name of O. for the purpose of protecting it from attachment. Whatever might be the rights of creditors holding executions unsatisfied, to reach the fund, it could not be reached by an attachment against M., for the reason that the deposit in the the name of O. did not create any debt between the bank and M. And the fund, not being liable to attachment as a debt due to M., by the provisions of the code, could not be subjected to such attachment by a decrce in equity. Appeal from a judgment. The plaintiffs in this action previously brought an action against Peter R. Mumford, one of the present defend Greenleaf v. Mumford. ants, in which they obtained an attachment. The sheriff attempted to levy this attachment upon money upon deposit in the Nassau Bank, in New York city, supposed to belong to Mumford. But it proved that the money in question had been deposited in the name of one Oakey, who had also drawn checks against the deposit, payable to his own order, and had got them certified by the bank, and left them, unindorsed, in a box kept by him at the bank. Both Oakey and the bank denied that the money was subject to attachment as the property of Mumford. The plaintiffs then brought the present action against Mumford, Oakey, the Bank, and one Speyers (who claimed as assignee of Mumford under an assignment made after the levy), seeking to have any payment of the deposit by the bank upon Oakey's checks restrained, and to have the impediments to the attachment removed and the fund declared subject to it. Upon the trial the court found that the sum deposited by Oakey in the Nassau Bank, was really deposited for the use and benefit of Mumford, and belonged to Mumford; that the drawing of the checks and getting them certified by Oakey, was a contrivance on the part of Mumford and Oakey to screen the money from the creditors of Mumford, and to prevent or defeat the levy of an attachment or execution thereon; and that the levy was duly made; and that the plaintiffs were entitled to satisfaction of their judgment out of the fund. From the judgment in favor of the plaintiffs, upon these findings, the defendant Speyers now appealed. Charles A. Rapallo, for the appellant. David Dudley Field, for the respondent. BY THE COURT.*-SUTHERLAND, J.-The exceptions to the conclusions of law, that the service of the warrant of attachment on the Nassau Bank constituted a levy on the fund in question; that the money deposited by Oakey in * Present-BARNARD, SUTHERLAND, and INGRAHAM, JJ. Greenleaf v. Mumford. the Nassau Bank was bound by the levy made under the attachment; and that the plaintifs were entitled to judg ment, were all well taken. These conclusions of law were all plainly erroneous, for the reason that they all assume that the sum of $53,000 deposited by Oakey in the Nassau Bank, for which the bank had given him credit, and for which the bank had certified checks drawn by Oakey against the fund, was capable of being attached as a debt due or owing from or by the bank of the defendant Mumford. In other words, these conclusions of law and the judgment quietly assume against the defendant Speyers the main point in the case; and erroneously assume it; for the facts found show that there was no debt due or owing from the bank to Mumford on account of the $53,000, or his deposit, when the attachment is alleged to have been served. The main question in this case is not as to the regularity or sufficiency of service, or attempted service, of the attachment; but the main question is, do the facts found show that there was any debt, fund, or thing which was or could be attached or levied on? Plainly they do not. The transaction between Mumford and Oakey as to the $53,000, however fraudulent and void as to the plaintiff's and other creditors of Mumford, was valid as between Mumford and Oakey; and whatever the right of the plaintiff's and other creditors, with judgments and executions returned nulla bona, to have the transaction declared fraudulent and void, and reach the fund in equity, the plaintiffs could not reach the fund with their attachment in their action against Mumford for their debt. The plaintiffs could only attach the fund as a debt of the bank's to Mumford; but the facts found in this case show that the debt arising from the deposit in the bank by Oakey and the credit given by the bank to Oakey, was a debt of the bank's to Oakey, and not a debt of the bank's to Mumford. To say that the fund deposited in the bank by Oakey, and for which the bank had given him credit, and on account of which the bank had certified the checks of Oakey drawn against the same, could be reached by attachment in the action of the plaintiffs against Mumford Greenleaf v. Mumford. for their debt; or to say that the fund was attached in that action, because the court below found in this action that the transaction between Mumford and Oakey was fraudulent and void, as to the plaintiffs and other creditors of Mumford; and that the fund so deposited by Oakey in equity belonged to the creditors of Mumford; is to say that you can give the finding and judgment in this action (commenced before the plaintiffs had got a judgment for their debt), on the question of fraud, an ex post facto operation, and that you can by this ex post facto operation, support the attachment proceedings in the first action, and the lien and preference claimed by the plaintiffs to have been acquired under or by the attachment proceedings in the first action. Why, the very claim of the counsel for the plaintiffs, that this action is an action to subject the fund in question to the attachment in the first action, involves the admis-. sion that it was not and could not be attached in the first action, and that the plaintiffs did not and could not, by the attachment proceedings in the first action, get any lien on the fund, and that they did not, and could not, by their attachment proceedings in the first action, obtain any right or preference to have their debt paid in full out of the fund. And a claim that the fund was attached in the first action, because the court below found, in this action, that the transaction between Mumford and Oakey was fraudulent and void as to Mumford's creditors, involves the same admission, that the fund was not attachable in the first action. There is really no such thing as an action, either by the creditor or the sheriff, to subject chattels or debts to an attachment issued under the code. It is the code which subjects property to attachment. Who ever heard, until recently, of an action either by a sheriff or creditor in aid ⚫ of the code, to subject property to attachment-to make that attachable under the code which is not attachable under the code? In the case of Kelly v. Lane, I dismissed the complaint at special term, on the ground that the sheriff could not Greenleaf v. Mumford. maintain such an action. There was an appeal, and it was reversed by the general term. For a more full discussion of the question, I refer to my dissenting opinion in that case, at general term (Kelly v. Lane, 42 Barb., 610). I think I may say that the views expressed in my dissenting opinion in Kelly v. Lane, were fully and unequivocally sustained by the court of appeals in Lawrence v. Bank of the Republic (35 N. Y., 320). True, perhaps I did not say in Kelly v. Lane, either at special or general term, that a creditor could not bring such an action, for I had no occasion to say it, but my reasoning applied equally to such an action by a creditor. Judge MORGAN, in his opinion in the court of appeals, in Lawrence v. Bank of the Republic, does not say in words that a creditor could not maintain such an action; but as the question in the case arose in the defendant's answer setting up the attachment proceedings by the defendant, the question whether either the defendant or the sheriff could have maintained such an action, was before the court. It does not appear that there had been a suggestion by counsel, that even if the sheriff could not have maintained such an action, the defendant could. was natural, therefore, that the judge should in words. limit his opinion to the question which had been discussed, whether the sheriff could have maintained such an action. I venture to say that the learned judge and the counsel assumed if the sheriff could not have maintained such an action, the defendant could not. It I dismissed the complaint in Merchants' & Traders' Bank v. Dakin, at special term, on the ground (see 23 How. Pr., 510), that the plaintiff, as a judgment creditor, with an execution out and not returned nulla bona, could not maintain the action; the bond and mortgage sought to be reached and applied to the payment of the judg ment being choses in action, or equitable assets. There had been an attachment issued in the action in which the judgment was obtained, under which attachment it was claimed that the bond and mortgage had been attached as a debt due or owing from the defendant Miller to the de |