(dissenting). It seems to me that the opinion- at Special Term (130 Misc. 366) takes a broader viewpoint and one more in accordance with the substantial rights of the parties, and I, therefore, vote to affirm.
Concededly a State may apply the property of a non-resident within its borders to the payment of a claim of one of its citizens. (Pennoyer v. Neff, 95 U. S. 714.) Only through the prior impounding of such property can jurisdiction be obtained over a nonresident. (Dimmerling v. Andrews, 236 N. Y. 43.) The plaintiff was the procuring cause of a sale by the defendant, ,a non-resident corporation, of its business and assets in this State to a third party. The plaintiff’s action is to recover upwards of $300,000 as a broker’s commission in effecting the sale. The plaintiff sought to obtain jurisdiction of the defendant by attaching its right in the contract of sale so obtained. That this is a valuable right and can now be sold for a substantial sum, would seem to follow from the fact that the assets sold for upwards of $7,000,000 and the defendant under the contract of sale, in addition to a large payment received in cash, is entitled to receive twenty per cent of the profits of the business over a period of seven years, with an annual accounting at the end of each calendar year, the first becoming due December 31, 1927. It is contended that the courts are without power to apply this property right situated in this State to the payment of this claim because it is not subject to attachment within the language used in the Civil Practice Act in enumerating the property which may be attached. The purpose of the sections in question obviously *591is to include all substantial property rights arising out of contract. Certainly the spirit of the act covers the claim in question and, in my opinion, it is fairly within the letter also, giving to the phrase “ a cause of action arising upon contract ” the reasonably broad interpretation which the context requires. As was said by Judge Gray in Warner v. Fourth National Bank (115 N. Y. 251): “ In this case, what was the subject of the attachment was this right of the Penn Bank to compel its pledgee to account to it as to the pledged paper, and to receive the surplus of the proceeds of collection, after satisfying the pledgee’s claim for advances. That right is a chose in action, and, in the nature of things, is intangible. It is the subject of attachment as a demand against the person, within the spirit of the language of the Code.”
The right to demand an accounting at the end of each of the seven years is a present right enforcible through the mere lapse of time. At the least there exists a cause of action even if it may be unnecessary to exercise it because the parties may voluntarily account. In Clements v. Doblin (209 App. Div. 208; affd., 239 N. Y. 526) a levy was made upon any interest of the defendant in the hands of factors, the defendant’s right being to receive any balance from accounts payable in the future in connection with goods sold through such factors. It was contended that there was nothing attachable because there was nothing immediately due and that nothing ultimately might be due to the defendant. It was held that the right to demand any surplus that might exist after the amount loaned was paid, was attachable even though no amount was due presently and there was doubt whether the amount collected would be sufficient to leave any amount applicable to the payment of the attaching creditor. In this latter case, as in the case at bar, what existed was a cause of action arising out of contract which was of some value. It is true that the amount would vary in accordance with the probabilities or non-probabilities of realizing more or less and perhaps ultimately nothing, but as long as the facts show a possibility of something of value being realized, there is property right of some value.
In the case at bar, as noted, the right to receive twenty per cent of the profits of a $7,000,000 corporation is of large present value.
The sections of the Civil Practice Act relating to what property may be sold on execution should receive a construction in harmony with the sections relating to attachment.
The order appealed from should be affirmed.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.