The attachment of the Cheesborough Manufacturing Company was sued out and levied before the appellant was appointed receiver of the property of the Paterson Fire Insurance Company in this State. At that time the property of the insurance company, actually within this State, was liable' to attachment at the suit of creditors here, notwithstanding a receiver had been appointed in New Jersey.
The property levied on by virtue of the attachment was the sum of $2,000, then in the hands of the clerk of the City Court of Brooklyn, in lieu of a bond on appeal by the insurance company from a judgment recovered against it in that court to the General Term of the same court.
In a certain sense the money was in custodia legis, and the attachment could not affect the possession of the clerk, nor divert the money in any wise from the special objects and purposes for which it was deposited. But, for other purposes, the title of the money remained in the insurance company, and in the event of two contingencies its rights thereto would be as complete as before the deposit: First, if the judgment should be reversed, the money would belong wholly to the insurance company, and could be withdrawn by the depositor; second, in case of. an affirmance, the residue of the money, if any, after satisfying the judgment and all costs, would belong absolutely to the company, and could also be withdrawn.
No attempt was made to interfere with the possession or control of the clerk. The effort was merely to secure, by the- attachment, whatever rights, reversionary or otherwise, the insurance company had therein. Those rights were property, and we see no sound reason why they should not be attachable at the suit of a creditor. The service of the attachment and notice thereof upon the clerk vas not a contempt of the City Court, as an attempt to take the money from the clerk might be, but it was analogous to an attachment upon moneys in the hands of any other depositary who has *630a lien or claim which entitles him to keep the possession as against the owner and the attaching creditor. In all snch cases the levy ot the attachment is good to the extent of the real interest of the creditor as it then exists or may subsequently be ascertained.
When the receiver was subsequently appointed in this State the title or interest which he took, was and is subject to the prior lien acquired by the attaching creditor. We see no reason, therefore, for setting aside the levy of the attachment.
The application, to be allowed to come in and move to set aside the attachment and order of publication, was not based on very meritorious grounds. It was not an absolute right, but the mction was addressed to the discretion of the court. We think the discretion was not abused, and that the order should be affirmed, with costa and disbursements.
Beady and Ingalls, JJ., concurred.Order affirmed, with ten dollars costs and disbursemewta.