The appellant Weber, admits his indebtedness upon a contract made between himself and one Pattison in the sum of $1,600, *583which sum was payable by the terms of the contract to the respondent Wealthie P. Craig. The legal title to the money, payable under the contract, was therefore plainly in Mrs. Craig. On the 16th of December, 1876, Mrs.' Craig brought her action against Weber in this court upon said contract to recover said sum, being the balance alleged to be due her under the contract. In an action brought by one Yan'Dyck against Pattison for the sum of about $850, on the 81st of July, 1876, an attachment was issued and delivered to Sheriff Conner, and he thereafter served the attachment by delivering and leaving with the appellant Weber a certified copy thereof, and demanding of Mm the moneys owing upon the above-mentioned contract, and he left also with said Weber a notice specifying that he levied upon the moneys payable under said contract.
No judgment has yet been recovered in the action of Yan Dyck against Pattison. About the 1st of January, 1877, the sheriff, Conner, commenced an action against the appellant Weber, based upon the attachment above mentioned, to recover the moneys due under said contract. Afterwards, and about the twenty-second of January, Weber made his motion, in substance, based upon the proceeding's in both actions against him, for an order substituting Mrs. Craig as defendant in the action of Conner against Mm, and for such other or further relief as to the court should seem just and proper, and in the meanwMle staying all proceedings in both actions.
The court denied the motion. There is nothing to show upon what particular grounds the motion was denied at Special Term, but it seems to us quite apparent that, under the authority of Thurber v. Blanck (50 N. Y., 80), the sheriff cannot maintain his action against Weber. The attachment was levied upon equitable assets only. The legal title to the moneys payable under the contract was very clearly in Mrs. Craig and not in Pattison. Pattison could not himself maintain an action upon the contract to recover such moneys, and the only way in which Yan Dyck can reach the same and apply them upon his judgment against' Pattison will be by establishing, after the return of an execution upon his judgment, that the money in equity belongs to Pattison, and that the legal title is held by Mrs. Craig in fraud of Pattison’s creditors.
*584Neither the sheriff nor Yan Dyck can bring a direct action against Weber to recover such indebtedness, by virtue merely of the attachment, nor before the return of an execution upon any judgment that may be recovered in the action of Yan Dyck against Pattison.
W e regard the case of Thurber v. Blanck as decisive of these questions. That decision is in direct conflict with the decision of the Commission of Appeals in Mechanics and Traders' Bank v. Dakin (51 N. Y., 519), but we are constrained to follow the decision in Thurber v. Blanck, without regard to our opinion as to which of those decisions is the better law. It would not therefore, vre think, have been proper for the court below to have ordered the moneys owing by Weber to be paid into court in the action brought by the sheriff, and that Mrs. Craig be substituted as a party defendant in that action; nor to have directed the moneys to bo paid into court in Mrs. Craig’s action, and that the sheriff be substituted as defendant therein, because, in neither -case, according to the rule laid down by the Court of Appeals, can the sheriff contest or defend against Mrs. Craig’s claim to the money.
If, however, any order had been made, it should have been that the money be paid into court in the action brought by Mrs. Craig against the appellant Weber; first, because her action wras first commenced and covers the entire claim, while the sheriff’s action, afterwards commenced, is based upon an attachment for an indebtedness amounting to little more than one-half of the claim; second, because the legal title of the moneys is clearly in Mrs. Craig, and if any contest can be made by the sheriff over such title under the attachment in his hands, issued in a suit which has not ripened into judgment, it ought to be made in her suit rather than the one brought by the sheriff. We think, however, that under the case of Thurber v. Blanck, above cited, the motion was properly disposed of by the court below, and the order should be affirmed, with costs.
Daniels, J.:According to the doctrine of the case of Thurber v. Blanck (50 N. Y., 80), the validity of the claim made by the plaintiff Craig to the debt cannot be tried or determined in the action brought by the sheriff. Por that reason the denial of the application made was a *585proper exercise of judicial discretion, and as the order involved tlie exercise of such discretion, according to the language of section 122 of the Code of Procedure, it should be affirmed. I concur for those reasons.
Brady L, concurred.Orders affirmed, with costs.