(concurring.) The property which is the subject of dispute in this action was seized by the sheriff under a warrant of attachment against the members of the firm of S. Michaelis & Co. At the time the goods in question were in the possession of the plaintiff, claiming to be the general assignee *818of the firm for the benefit of its creditors. He has brought this suit against the sheriff to recover damages, on two grounds: First, because lie claims that the taking of the property under the attachment was illegal; and, secondly, because he claims that the sheriff wrongfully refused to deliver .up the property after the plaintiff had duly demanded that the same should be returned to him. There is no proof of any demand for a return of the goods after the levy, so that this appeal really turns upon the question whether the original taking by the sheriff was lawful. I am unable to see why it was not. There is a stipulation in the record admitting that the property was taken under the attachment set forth in the answer, and the case was evidently disposed of at the circuit upon the strength of this admission. The attachment was issued in a suit in the city court against Samuel Michaelis and Mpritz Michaelis by Edward Friend et al., and the warrant commanded the present defendant, as sheriff of the city and county of Hew York, to attach sufficient property of the said Samuel Michaelis and Moritz Michaelis to satisfy the demand of the plaintiffs in that action. The process thus issued to the sheriff constituted ample authority for his action in levying upon any property which he could find belonging to Samuel Michaelis and Moritz Michaelis within the county of Hew York. For the purposes of this litigation, it is not open to dispute that the property in controversy here was theirs; since it is admitted in the case that, if the good faith of the assignment from Samuel Michaelis and Moritz Michaelis to the plaintiff can be litigated in the present action, the assignment is to be deemed fraudulent as against the creditors of the assignors. If the assignment is fraudulent, of course the plaintiff has no title as against the claims of creditors; but he contends that the defendant is not in a position to question his title, inasmuch as that can be done only in behalf of a judgment creditor or a creditor having an attachment, and the defendant, he says, represents neither. But at the time of the taking the sheriff certainly did represent an attachment creditor. There is no suggestion that the attachment was void. As long as it remained in force, therefore, it was a complete justification to the defendant. Day v. Bach. 87 N. Y. 56. The simp'e fact that the process has since been set aside, as having been erroneously granted, does not relate back so as to change the position of the sheriff at the time he took the goods, and render his act in so doing illegal. It might well affect his right to retain possession of the property if a return had been demanded subsequently,—that is to say, after the attachment was vacated; but prior to that time, in view of the stipulation as to the fraudulent character of the assignment as against creditors, the sheriff held the property as the representative of a.creditor having a specific lien thereon by attachment, and his custody was therefore lawful. Rinchey v. Stryker, 28 N. Y. 45. As has been suggested, a different question would arise if there were any proof of a demand for the return of the property after the attachment was vacated; but, on the record before us, I think the case was properly decided below. I am therefore in favor of affirming the judgment.