(dissenting. After stating the facts.) I think the complaint was properly dismissed, on the following grounds:
1st. The sheriff had no interest which gave him the right to be the plaintiff in the action. The action is brought for the exclusive benefit of Belmont & Go. the judgment creditors. If the assignment is declared fraudulent and void, and the sheriff recovers the money, he will of course pay it over to Belmont & Oo. If the assignment was or is fraudulent and void, it was and is fraudulent and void as to the creditors, not as to the sheriff. Not only had the sheriff no interest which could properly make him the plaintiff, but he is wholly a volunteer plaintiff, unless the service of the attachment on the trust company, made it his duty as sheriff to bring the action.
2d. It can not be seriously claimed that the sheriff had a right to bring the action as the trustee of an express trust.
3d. It follows, if the sheriff has a right to maintain the action, that it is by the express authority of some statute. (Code, §§ 111, 113.) The presiding justice, in his opinion, refers to section 232 of the code, as containing this authority. This section, after speaking of the manner in which the sheriff shall proceed on the attachment, and directing him to keep *611the property seized, or its proceeds, to answer the judgment which may he obtained in the action, says, that he “ shall, subject to the direction of the court, or judge, collect and receive into his possession all debts, credits and effects of the defendant.” But it is plain that this action was not brought to collect a debt, &c. of the defendants in'the attachment suit, within the meaning of this provision of the code. Tl;e sole purpose of this action is, to reach equitable- assets beyond the reach of the attachment and execution in the attachment suit; and yet the claimed legal lien acquired by the service of the attachment, is pointed to, as the foundation of the sheriff’s right to maintain the action. The fact is, the sheriff did not, by the service of the attachment on the trust company, attach a debt or credit of Lanes, Boyce & Co., the defendants in the attachment. Though the assignment should be declared fraudulent and void as to their creditors, yet it was and is valid as to them. The relation of debtor and creditor did not exist between the trust company and Lanes, Boyce & Co. when the attachment was served on the trust company. If the deposit of the moneys by the assignees with the trust company created a debt, it was a debt of, or to, the assignees. If the sheriff should obtain a judgment in this action, setting aside the ássignment, and declaring Belmont & Co. equitably entitled to enough of the funds in the hands of the trust company to pay their debt, this judgment would be entirely consistent with the fact that when the attachment was served the trust company was not indebted to Lanes, Boyce & Co., and therefore that the sheriff did not and could not attach any debt of theirs. In granting the relief asked for by virtue of its equity powers, the court would not be required to declare, and never could or would declare, otherwise.
It appears to me, therefore, that the reasoning to show the sheriff’s right to bring this action by the express authority of section 232 of the code, not only assumes that when the attachment was served on the trust company, the assignment was void even as between the assignors and assignees, but also *612that the assignment had been judicially declared void as tc Belmont & Co., though they had not then recovered a judgment, and though the very question in this case is, as to the authority of the sheriff to bring an action to have the assignment declared void, and that these unauthorized assumptions are not the only defects of the argument; for the relief asked for by £kc complaint, if granted, would be entirely consistent with the fact that when the attachment was served, the trust company was not indebted to Lanes, Boyce & Co. but to their assignees, for or in the amount deposited by the assignees.
It is not necessary to question the right of the sheriff to go into a court of equity, if necessary, to collect debts, credits and effects of the defendant in the attachment in fact attached by him.
4th. It appears to me that the recent decision of this general term, in the case of The United States Trust Co. v. Wiley and others, (41 Barb. 477,) that the trust company, under the circumstances, could not maintain a bill of interpleader, is inconsistent with the conclusion arrived at by my associates in the principal case. I think the decision referred to was right.
5th. I have never doubted that the sheriff, when sued for seizing chattels under an attachment or execution, by a third party, claiming under assignment from the defendant in the attachment or execution, might show as a defense, that the assignment was fraudulent and void as to the plaintiff in the attachment or execution; but does it follow that the sheriff upon or after such seizure could bring an action in his own name, to have the assignment set aside as fraudulent? I think such an action would be an anomaly.
■ An attachment or execution directs the sheriff to seize the goods and chattels of the defendant. He seizes certain chattels as the chattels of the defendant. If made an involuntary defendant for such seizure, it is reasonable that he should be permitted to show for his own protection, if not for the ben*613efit of the attaching or execution creditor, the assignment to be fraudulent, and that as to such creditor the chattels were at the time of the seizure the chattels of the defendant in the attachment or execution; but does it follow that the sheriff could, after the seizure, volunteer to bring an action to have the chattels declared the chattels of the defendant in the attachment or execution ? The attachment is his authority for making the seizure, at the peril of being able to show, in a suit against him, the alleged assignment to be fraudulent and void; but where is his authority for bringing the action to have the assignment declared fraudulent and void ?
6th. This action by the sheriff, so far as I am informed, is without precedent. It is not a violent presumption, that Lanes, Boyce & Go. at the time of their assignment, had many creditors beside Belmont & Co., and that other creditors, before the attachment was served on the trust company, were in a position to commence, and had commenced, actions to set aside the assignment as fraudulent, and reach the equitable assets. It is difficult to see any possible motive for serving the attachment on the trust company, and then under color of the claimed legal lien acquired by such service, commencing this action in the name of the sheriff, other than to displace or forestall such prior equities, and gather the fruits, which superior diligence had equitably entitled such other creditors to.
If this was the motive or purpose, we are not called upon in this case to strain the law to create a precedent.
On the question of the right or power of the sheriff to bring this action, it is sufficient to give force to this suggestion, that there may have "been such prior equities. It is not an answer to it, to say that the sheriff may have to take the relief asked for in this action subject to such prior equities. Such qualified right or decree is not consistent with the theory of the sheriff's right to bring the action.
7th. If my brethren are right in the conclusion they have come to, and it is established as a rule or principle of law, *614that the sheriff had a right to bring this action in his own name, then sheriffs, in addition to their other powers and duties, are the grand trustees, prosecutors or almoners of, or for, defrauded creditor's; and it is their duty to hunt up, and ferret out frauds, and bring actions to reach equitoMe assets, in their own names, for the benefit of defrauded creditors.
[New York General Term, November 7, 1864.I can not think there is any law clothing sheriffs with any such general, adminsiterial, officious official capacity, or duty.
8th. It is doubtful whether the judgment creditors, Belmont & Go., on the facts stated in the complaint, could, have maintained the action. The execution had not been returned when the action was commenced. It can not be said that the assignment was an obstruction in the way of their execution; for if the assignment had been out of the way, their execution could not have reached the funds in the hands of the trust company.
9th. The presiding justice, in his opinion, remarks, more than once I think, that it is conceded the assignment is fraudulent and void as to creditors. I presume nothing more is meant by this than that in examining and deciding the question of the right of the sheriff to bring and maintain the action in his own name, it may or should be conceded that the assignment is fraudulent and void. I am not aware of any concession as to the fraud, other than this logical concession. The answers of the defendants who have answered, other than the trust company, put in issue the alleged fraud. I know of no concession in fact as to the fraud.
I think the judgment appealed from should be affirmed, with costs.
Judgment reversed.
Leonard, Clerke and 8uth~ erland, Justices.]