I concur, with the presiding justice, as I do not see that there is > . any 'cause of action alleged against either of the defendants. The plaintiff apparently seeks to enforce a lien claimed to have b'een acquired by a: levy under an attachment -upon property of the defendant in the action in which the attachment was granted. To obtain a lien under an attachment upon personal property capable of manual delivery it was necessary that the sheriff should take the actual custody of such property: (Code Civ. Proc. § 649, subd. 2.) A'lien can be, acquired, under subdivision 3 of section 649 of the ' Code of Civil Procedure, upon personal property belonging to the defendant in the attachment action where such property is in the possession of - a third party, but is. subject to a lien,, so that actual ' custody of the property cannot be taken by the sheriff. (Warner v. Fourth National Bank, 115 N. Y. 251.) The sheriff adopting this course levied upon property held by Dryfoos,. Kahn & Co., by the service of the attachment upon them and obtained from them á certificate that they held certain property which was subject to á lien. To-enforce the lieu of an attachment upon property thus levied' upon it is necessary that.the plaintiff should allege that the property was held by Dryfoos,. Kalm & Co: subject to a lieu, that a levy had been acquired upon such property by.the service of an. attachment, as. required by subdivision 3 of section 649 of the Code of Civil *95Procedure and that the lien to which the property was subject had been in some way satisfied and discharged,, or that the property was of a greater value than the lien, whereby the attachment creditor would be entitled to the surplus. The complaint does not contain the necessary allegations to sustain an action to enforce such a levy. The action cannot be maintained as a judgment creditor’s action under section 1871 of the Code of Civil Procedure for that section applies-only, to a case where execution has been returned wholly or partly unsatisfied, hi or can the action be sustained as an action to enforce' an outstanding execution, as there is no allegation that this defendant holds property of the judgment debtor which should be applied to the satisfaction'of the judgment but which the sheriff is prevented from taking by reason of a fraudulent transfer, or other invalid instrument which it is necessary that the court should set aside to enable the sheriff to levy.
The demurrer should, therefore, be sustained upon the ground that no cause of action is alleged against the demurring defendants.
O’Brien, P. J., and McLaughlin, J., concurred.
Judgment reversed, with" costs, and demurrer sustained, with costs,-with'leave to plaintiff to amend on payment of costs in this court and in the court below.