I concur in the result, but upon other grounds than those stated by Mr. Justice Brady. I agree with him that the effect of non-publication was to destroy the attachment as to Williams, and that the cause proceeded thenceforward precisely as though the attach*219ment bad originally issued against Birnie alone. That brought the case distinctly within Staats v. Bristow (73 N. Y., 264), namely, a suit pending against the firm with an attachment therein against but one of its members.
But, were the case free from other difficulties, the plaintiff, Donnell, would be entitled to retain his attachment as to Burnie for whatever it was worth, and we could not discharge it absolutely merely because no lien upon the firm property had been thereby acquired.. "We might set it aside as against Williams, and leave the law to tahe its course.
But I think Donnell’s attachment was bad ah , because of the failure to comply with section 636'of the Code of Civil Procedure, in omitting to state that the plaintiff was entitled to recover the sum specified over and above all counter-claims known to him. This provision was new, and was undoubtedly intended as a safeguard against the wrongful and oppressive use of this remedy, in cases where the plaintiff, though having a cause of action against the defendants, knows very well that the latter has a counter-claim equal to the demand or some part of it. This was a matter of substance, and could not be disregarded. It was a pre-requisite to the granting of the attachment.
Upon this ground, I think the order shóuld be reversed and the Donnell attachment vacated.
Davis, P. J., concurred with Babeett, J.Order reversed.