• This is a hard case. The plaintiff procured an attachment against the defendant as an absconding debtor. There was proof tending to show very strongly that the defendant left the State of New York under such circumstances as would justify the inference that he intended to cheat creditors. The summons was served by publication. The papers do not show the affidavits on which the order to publish was issued, and it must be assumed that they made out a case under section 438 of the Code. A general execution was issued, and under it the sheriff of Queens county sold the defendant’s real estate. The property brought probably less than half its value. The time to redeem runs out, and the purchaser at the sheriff’s sale conveyed the land to Whittaker and Willetts who now occupy the same. After the time for redemption expired, the defendant returned to this State. He applied to open the case and answer *19He obtained such leave, answered, tried the case before a jury and succeeded in his defense. Thus the defendant has been sold out for a debt which didn’t exist. This fact does not determine the case. The judgment was regular and in full force when the sale was made. The purchaser bought on the faith of the judgment, and his grantees have bought on the faith of this title and have made large repairs on the premises. The execution was not regular. I assume from the papers that the attachment was against a resident who had fled with evil intent. It is also to be' inferred that the order of publication was based upon the same allegation. Only two executions were proper. If the publication was against a non-resident, then the execution could only go against the property attached. If the publication was made as provided for .cases of residence and concealment in the State the execution must have gone against, first, the attached property; second, other personal property; third, attached real estate; fourth, other real estate. (Code, §■ 1370.) The principle established is that non-residents shall only answer by the attached property, and residents shall answer generally but in certain prescribed order of sale. This execution violated this section. It let out from the levy personal property of the alleged debtor not actually attached. The sale of the real estate .was therefore irregular and void. There is proof tending to show other personal property than that attached, but in the absence of such proof the execution must follow the statute so that actual search by the sheriff should determine the fact. The omission was not a mere irregularity and thus amendable. The case is as if an execution should direct the sale of the debtor’s lands in the first instance.
The order should be reversed, and' the execution and sale under it be set aside, without costs.
DykmaN, J., concurred; Pkatt, J., not sitting.Order reversed, and motion granted setting aside execution and sale under it, without costs.