Adolf Ladenburg and Others, Respondents, v. Commercial Bank of Newfoundland, Defendant. George H. Davidson, Appellant

Adolf Ladenburg and Others, Respondents, v. Commercial Bank of Newfoundland, Defendant. George H. Davidson, Appellant. Attachment — a junior attaching creditor applying after; thirty days to vacate a-prior attachment must show service made or publication begun of the summons— Code of Civil Procedure, § 638. Where a junior attaching creditor moves to vacate an attachment he must show that he has a valid levy upon the property on which the attachment sought to be set aside has been levied. Where a junior attaching creditor moves to vacate an attachment more than thirty days after it was granted, and his affidavit fails to show that at the-time when it was made the summons had been personally served upon the defendant, or that service by publication had been commmenced, he-is in no position to attack the prior attachment. Appeal by George H. Davidson, a junior attaching creditor, from an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1896, denying his motion, to vacate an attachment obtained by the plaintiffs in the action. James J. Allen, for the appellant. Benjamin N. Cardozo, for the respondents; [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: In order that the moving party can succeed on a motion of this ■description, it is necessary for him to show that he has a valid levy • upon the property upon which the attachment sought to be set aside .has been levied. In the case at bar it appears that the attachment of the moving party was issued on the 17th of December, 1895, and that the .affidavit upon which the appellant moved to set aside the respond-.ants’ attachment was made on the 5th of February, 1896. More than thirty days had elapsed between the granting of the appellant’s attachment and the making of the affidavit, and such affidavit fails ■to show that at the time it was made the service of the summons was made personally upon the defendant or service by publication begun. In order that the lien of an attachment shall continue, it is necessary under section 638 of the Code that within thirty days after the granting of such attachment the summons shall be either personally .served upon the defendant or service by publication begun.- The -provision of the section in question is, that a warrant may be granted by a judge of the court or by any county judge to accompany the summons, or at any time after the commencement of the ■action before final judgment. Personal service of the summons, .must be made upon the defendant against whose property the 'warrant is granted within thirty days.after the granting thereof, or •else before the expiration of the same time service of the summons by publication must be commenced or service thereof must be made •without the State pursuant to an order obtained therefor as prescribed in the Code, and if publication has been or is thereafter commenced, the service must be made complete by the continuance thereof. There being no evidence of a compliance with this section there is no proof that the lien óf the appellant’s attachment, continued, and consequently he is not in a position to attack the respondents’ .attachment, even if there should be any defects in their papers or •procedure. The order should be affirmed, with ten dollars costs and .disbursements. 'Williams, Patterson, O’Brien and Ingraham, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.