Hatch, J.:
Under the title of Strickland v. National Salt Co. (105 App. Div. 640) the question presented by this appeal was argued and to some extent considered by this court. Therein the motion was made on behalf of a judgment creditor in the interest of the receivers of the property. The court at Special Term expressed the opinion that had the receivers herein begun an action against the defendant Ingraham to restrain the United States marshal from selling the' property, a case would have been made which prima facie entitled the receivers to an in junction; but as the parties to that proceeding were not parties to this action, and had no interest therein, save as the moving party was a judgment creditor, a restraining order would not be granted. Upon appeal to this court, the order was affirmed, without opinion. Such determination, however, is not decisive of the present question, as the parties in interest are quite different, and stand in relation to the property as the representatives of the court. The receivers are parties in interest in this action, and [510] the purpose of the action is. to protect the property interest with which they have been invested under the several orders that have been made. In the attachment proceeding instituted by the defendant Ingraham it was required, in order to levy such warrant of attachment upon the real property, and obtain a lien thereon, to tile a notice of the same, stating the names of the parties to the action; the amount of the plaintiff’s claim as stated in the warrant, and a description of the property levied upon, in the office of the clerk of the county, where the real property is situated. Such notice, is required to be subscribed by the plaintiff’s attorney, and must be recorded and indexed by the clerk in the same book and in like manner as a notice of the pendency of an action, and when so filed, it has the same effect as the notice of the pendency of an action. (Code Civ. Proc. § 649.). As the property is not capable of being reduced to the possession of the officer, the effect of the attachment is simply to create alien upon, the property thus attached. ' (Van Camp v. Searle, 79 Hun, 134; S. C. on appeal, 147 N. Y. 150.) The marshal, therefore, by the levying of the attachment, did not acquire the possession of the real property, but only a lien thereon,, assuming the attachment to have been properly levied. Such were the status and rights of the parties when the action was instituted by virtue of which the receivers of the property of the corporation were appointed, and under which they took possession of the same..
Had the .action of Ingraham in which the attachment was levied continued in the courts of this State, he would "have no right to levy his execution obtained pursuant to the judgment in his action so long as the receivers were in possession of the property, and he could in nowise interfere with such possession, although the lien of his attachment was in all respects regular and valid. The attempt to enforce the judgment by execution would constitute a. contempt of court, and any sale thereunder while the property was-in the possession of the receivers would be illegal and void. (Walling v. Miller, 108 N. Y. 173.) Must a different rule be applied where the same conditions exist and the same rights were obtained, but where the attachment is issued out of a Federal court having-jurisdiction of the subject-matter
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Hatch, J.:
Under the title of Strickland v. National Salt Co. (105 App. Div. 640) the question presented by this appeal was argued and to some extent considered by this court. Therein the motion was made on behalf of a judgment creditor in the interest of the receivers of the property. The court at Special Term expressed the opinion that had the receivers herein begun an action against the defendant Ingraham to restrain the United States marshal from selling the' property, a case would have been made which prima facie entitled the receivers to an in junction; but as the parties to that proceeding were not parties to this action, and had no interest therein, save as the moving party was a judgment creditor, a restraining order would not be granted. Upon appeal to this court, the order was affirmed, without opinion. Such determination, however, is not decisive of the present question, as the parties in interest are quite different, and stand in relation to the property as the representatives of the court. The receivers are parties in interest in this action, and [510] the purpose of the action is. to protect the property interest with which they have been invested under the several orders that have been made. In the attachment proceeding instituted by the defendant Ingraham it was required, in order to levy such warrant of attachment upon the real property, and obtain a lien thereon, to tile a notice of the same, stating the names of the parties to the action; the amount of the plaintiff’s claim as stated in the warrant, and a description of the property levied upon, in the office of the clerk of the county, where the real property is situated. Such notice, is required to be subscribed by the plaintiff’s attorney, and must be recorded and indexed by the clerk in the same book and in like manner as a notice of the pendency of an action, and when so filed, it has the same effect as the notice of the pendency of an action. (Code Civ. Proc. § 649.). As the property is not capable of being reduced to the possession of the officer, the effect of the attachment is simply to create alien upon, the property thus attached. ' (Van Camp v. Searle, 79 Hun, 134; S. C. on appeal, 147 N. Y. 150.) The marshal, therefore, by the levying of the attachment, did not acquire the possession of the real property, but only a lien thereon,, assuming the attachment to have been properly levied. Such were the status and rights of the parties when the action was instituted by virtue of which the receivers of the property of the corporation were appointed, and under which they took possession of the same..
Had the .action of Ingraham in which the attachment was levied continued in the courts of this State, he would "have no right to levy his execution obtained pursuant to the judgment in his action so long as the receivers were in possession of the property, and he could in nowise interfere with such possession, although the lien of his attachment was in all respects regular and valid. The attempt to enforce the judgment by execution would constitute a. contempt of court, and any sale thereunder while the property was-in the possession of the receivers would be illegal and void. (Walling v. Miller, 108 N. Y. 173.) Must a different rule be applied where the same conditions exist and the same rights were obtained, but where the attachment is issued out of a Federal court having-jurisdiction of the subject-matter
This question seems no longer to be one to be reasoned out on principles of jurisdiction, or of comity ’existing between courts of [511] different jurisdictions and exercising the same powers, as it is settled by an adjudication of' the Supreme Court of the United States in determination of a claimed conflict of jurisdiction between the'Stata and Federal courts in Wiswall v. Sampson (14 How. [U. S.] 52). Therein executions upon judgments issued by the Federal court had been levied upon real property and the-same advertised for sale, when a receiver was appointed by the Court of Chancery of the State of Alabama, in a suit instituted therein, who took possession of the property pursuant to the terms of the order appointing him. It was held that after notice of such appointment no proceedings under the execution could be taken without leave of the court appointing the receiver; that a sale thereunder would be illegal and void and constitute the same a contempt of court. The Wiswall case also-holds that when the party in whose favor the executions have been issued applies to the court having custody of the property for the allowance of his lien, a determination of such court will be res adyudioata of his rights. This case has received uniform approval by the Supreme Court of the United States in a long series of decisions, and is now the settled law of that court. It was said by Mr, Chief J ustice Fullee in Matter of Tyler (149 U. S. 181): “No rule is better settled than that when a court has appointed a receiver, his possession is the possession of the court, for the benefit of the parties to the suit and all concerned, and cannot be disturbed without the leave of the court; and that if any person, without leave, intentionally interferes with such possession, he necessarily commits a contempt of court and is liable to punishment therefor.” (Citing Wiswall v. Sampson, supra, and other cases.) .In that case the property was in the possession of a receiver appointed by the Federal court, and an attempt was made to seize the property while in such possession under process issued by the State court to enforce the collection of a tax assessed against its owners under the laws of the State.' It was held that the receiver’s right was superior; but it was also held that the State was' entitled to protection for the payment of its claim in accordance with the priority of its lien, and; that the receivers or the court having the custody of the property would protect such right and interest. The same doctrine is announced in Porter v. Sabin (149 U. S. 473, 479), where it was held that, in proceedings in- rem instituted in both the Federal and, [512] State courts, the court which first takes possession of the res acquires exclusive jurisdiction, and that process seeking to enforce the judgment of the court out of possession confers no right and ■conveys no title to the property if a sale thereunder be had. In Chautauque County Bank v. Risley (19 N. Y. 369, 377) the Court ■of Appeals seems to deny the doctrine of Wiswall v. Sampson so far as it holds that a sale under a valid lien after possession had been taken by a receiver was illegal and void, although it admitted that the party would be guilty of a contempt in enforcing the process. But in Walling v. Miller (supra) the Court of Appeals, speaking through Judge Earl, repudiates such doctrine, and affirms the holding in Wiswall v. Sampson to its fullest extent. A like conclusion was reached by the Circuit Court of the United States for the southern district of Calif ornia in Matter of Hall & Stilson Co. (73 Fed. Rep. 527). We have also been furnished with a manuscript opinion of Judge Thomas of the United States Circuit Court for the eastern district of New York- in the case of Ingraham v. National Salt Co., decided on May 17,1905,