p. 797JOHNSON v. HARDWOOD DOOR & TRIM CO.(Supreme Court, General Term, Second Department.Headnote
Attachment—Vacating—Decision on Merits op Action.An attachment against a foreign corporation will not be vacated on the motion of a junior attaching creditor on an affidavit that the claim of the senior attaching creditor arose out of a contract which was void by the laws of defendant’s domicile, as the grounds of such motion involve the merits of the action.
Appeal from special term, Kings county.
Action by George W. Johnson against the Hardwood Door & Trim Company. From an order denying a motion to vacate an attachment, Herbert E. Millhollen, a junior attaching creditor, appeals.
Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.Robert F. Little, for appellant.
Frederick P. Bellamy, for respondent.
This is an appeal from an order denying the motion -of the appellant, a junior attaching creditor, to vacate the plaintiff’s attachment. The action is on contract, and the defendant a foreign corporation. The appellant sought to vacate the attachment on proof by affidavit that the original consideration, out of which the obligation in suit sprang, was the purchase by the defendant, from plaintiff's assignor, of certain shares of the defendant’s own-capital stock; and it also, by proof, showed that such a purchase was, by the law of Pennsylvania (the domicile of defendant), void. The motion was denied oh the ground that the court would not, on such an application, pass upon the merits of the action. We think that this position was correct. The general rule is that on a motion to vacate an attachment the court will not try the cause itself, and •determine whether the plaintiff can succeed or not. Brown v. Wigton (Sup.) 18 N. Y. Supp. 490 ; Paper Co. v. Johnson, Id.; Rowles v. Hoare, 61 Barb. 266 . There are some exceptions to this rule, but •this cause plainly is not one. On the contrary, the rule should here
p. 798be given full force. The defendant is a foreign corporation, and has not appeared in the action. If the attachment should be vacated, the plaintiff will not only be deprived of his security, but also of the right to try his cause of action, for the court has acquired no jurisdiction of the defendant but by the attachment. The rights of the appellant can be entirely protected by another course. Under the authority of Lee v. Pfeffer, 25 Hun, 97 , he may apply to intervene in this action, and, on being made a defendant, contest the validity of the plaintiff’s claim in the ordinary manner, by answer and trial. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.