EBNER against BRADFORD

EBNER against BRADFORD. Supreme Court, First District; Special Term, March, 1867. Attachment.—When it may Issue. The attachment authorized by section 227 of the Code of Procedure, is allowable in actions for legal relief only. It cannot be issued in an action for equitable relief;—e. g., an action seeking to have a deed canceled, and an accounting and an injunction and receiver. Motion to set aside an attachment. The facts out of which the motion arose appear in the opinion. S. B. Brownell, for the motion. George Bowman, opposed. [MAJORITY — E. Darwin Smith, J.] E. Darwin Smith, J. The complaint in this action states a cause of action purely of an equitable nature; and prays for equitable relief, - and a judgment setting aside deeds, and for an accounting, and for an injunction and receiver. The attachment, given by the Code in section 227, is allowable “ in actions for the recovery of money onlyand by the amendment of 1866, “in actions for the wrongful conversion of personal property.” This amendment extends the attachment to legal actions, or actions of a legal nature, for the recovery of damages for the value of personal property tortiously taken or converted. It applies, also, to such actions as would have been denominated, before the Code, trover, trespass or replevin. It presupposes a judgment at law for damages, which may be followed by an execution to levy upon particular property. Upon the complainant’s complaint, he will not be entitled to any such single judgment. I do not think the legislature intended to extend the remedy by attachment, to equitable actions. I know of no case- where it has been so held, and think the plaintiff is not entitled to this remedy, in this case, upon the facts stated in his complaint. ‘ The attachment must, therefore, be set aside, with ten dollars costs.