(dissenting.) This appeal has been once heard and decided at a general term of this court. The judgment was affirmed. This court, after full argument, overruled all objections made by the appellants to the part of the judgment appealed from, but ordered a re-argument, so as to permit the appellant to apply at special term *561and have inserted in the case an objection that the sheriff should have been one of the plaintiffs, which was claimed to have been made on the trial. The special term refused to insert as a fact that such objection had been taken, upon the trial; so that the same record is. again presented for argument. There being no change of facts, and no claim that any fact was overlooked by this court on the former argument, or that any authority was overlooked, no ground is presented for a further consideration of the question once passed upon in the same court. Should the sheriff have been either sole plaintiff or joined with "the present plaintiffs ? I think not. The plaintiffs, by the attachment, acquired a specific lien upon the property attached. There had been created a fraudulent title between Mumford’s property and his creditors. Before the sheriff could collect the particular property levied on as sheriff, under the Code, it was necessary to remove this fraudulent title. This could only be done by an action in equity. The parties to such an action are the creditors who have attached and the parties committing the fraud and claiming .to hold under the fraudulent title. The issuing and return of an execution has no possible bearing on such an action. The sheriff is not a party to it.
[New York General Term, January 6, 1868.The judgment should be affirmed, with costs.
Judgment reversed.
Geo. G. Barnard, Sutherland and Ingraham, Justices.]