Blake v. Crowley , 8 N.Y. St. Rep. 796 ( 1887 )

Barnard, P. J. :

A warrant of seizure may be granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. (Code of Civil Procedure, §§ 1737,1738.)

The provision in section 1738, that the proceedings to procure the writ, and those after its procurement shall be similar to the provision in respect to attachment, was not intended to require the affidavit to state that the claim is above all counter-claim as in section 636 of the Code. This section only applies to attachments in actions to recover damages for breach of contract. There were three other cases in which attachments were proper, but it was only in cases for breach of contract that section 636 applied. Breach of contract has a definite meaning and does not include the foreclosure of a chattel mortgage, even though there was a failure to pay according to promises made. The affidavit is, therefore, sufficient. The action is not one in which the defendant Crowley can demand a trial by. jury. Crowley assigned property to defendant Corbett, and she assigned it to plaintiff to secure Crowley’s debt. The complaint avers that only a portion of this debt has been paid. An action at law cannot reach the proper remedy. The plaintiff is entitled to hold the chattel, to have the balance due on it adjusted and to a judgment to collect the amount due out of the proceeds of the chattel.

The order vacating the warrant should, therefore, be reversed and the case restored to the Special Term calendar for trial, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order vacating attachment, reversed with costs and disbursements.