I concur in the foregoing opinion and order. I am in harmony also with the rule laid down in the case of Patchen v. Rofkar,12 App. Div. 475, 42 N.Y.S. 35, upon which I understand Mr. Justice SANDERS will base his dissenting opinion. That case, however, was not one which was auxiliary to an action at law, as in the instant case, but was an independent suit wherein matter was alleged and proven dispensing with the necessity of such an action at law. If we should affirm this decree, no result favorable to the plaintiff could flow therefrom so far as has been made to appear, for the reason that the decree is entirely dependent upon the result in the law action in which no judgment in favor of the plaintiff has been or can be rendered, so far as the record in this case shows. In other words, a decree has been entered in this case adjudging that the securities in question of the value of $19,000 be held subject to a judgment sought in the sum of $7,300 that never can be rendered. I do not think that any court of final resort ever held that such a thing can or should be done.
It may be — indeed, I think there is — a theory upon which judgment and decree might be entered in this case which would protect the respondent, but the theory in mind has not been presented in the argument, and, in view of the statute of 1923, I do not feel justified in offering any suggestion in the matter.