Rumsey, J.:
The Columbia Spinning Company was a foreign corporation organized under the laws of. the State of Massachusetts. . On the 15th day of April, 1897, an action was begun in. that State by certain stockholders and directors of that company to dissolve the corporation, and on that day receivers were appointed of the property of the corporation who took possession of all its property in that State. On the saíne 15th day of April, 1897, the Merchants’ National Bank of the city of New York brought an action against, the Columbia Spinning Company to recover a debt due^ from that company to it, and on that day obtained a warrant of attachment against the property of the defendant corporation. On. the same day the deputy sheriff, in whose hands the warrant had been placed for service, went to- the place of business .of the firm of O. H. Sampson & Co. in the city of New York, and stated to one-of the members of the firm that he had in his possession the warrant of attachment against the property of the Columbia Spinning-Company under which he had come there to levy upon its property which was then, as he supposed, in the possession of the firm,, and requested Sampson to tell'him what property of the defendant, the said firm had in their possession and under their control.' Sampr son, to whom the application was made, denied that the firm had. any property of the defendant. On the nineteenth of April the= deputy sheriff went to the office of Catlin & Co., and, applying to-on e of the members of, that firm, said to him that he held a war[501] rant of attachment against the property of the Columbia Spinning Company, under which he desired to make a levy on the property of the defendant in their possession, and asked him whether the . firm of Catlin & Co. had any of the property of the Columbia Spinning Company in its possession. By them also he was told that they had no property of the company in their possession and under their control. Acting upon the information thus conveyed, the deputy sheriff took no further steps to levy the attachment upon the property of the defendant in the possession of either of those firms. Subsequently the sheriff demanded of each firm a certificate specifying .the amount, nature and description of the property of the defendant which they held, and a certificate was furnished on the 5th day .of May, 1897, by Sampson & Co. No certificate seems ever to have been furnished by the firm of Catlin Co. At the time of making the application to these two firms, respectively, the sheriff delivered to each of them a certified copy of the warrant and the papers upon which it was granted, and a notice advising them of the intention of the sheriff to levy upon the property in their hands, and requiring them to deliver all that property to him. and .to furnish, a certificate. At the time when the above inquiries were made' of these two firms, respectively, they had in their possession a considerable amount of personal property capable of manual delivery, which was owned by the Columbia Spinning Company, and there is no doubt that when they informed the sheriff that they had no such property, they told him what was not the truth, although they supposed the statement to be true. Subsequently, and on the 28th of April, 1897, the plaintiff Charles L. Robinson brought an action against the Columbia Spinning Company in this court in which he set up the pendency of the action in Massachusetts, and the. appointment of receivers in that State, and asked for the appointment of auxiliary receivers in the State of New York to take the property of the corporation in this State, and. hold it subject to the order of the court here. That application was granted, and receivers were appointed and qualified on' the twenty-eighth of - April, and took possession of the property. Up to that time no certificate had been procured by the sheriff and no levy under the attachment had been made, and none had been attempted except by the application o-f the.deputy sheriff to the [502] members of these two firms as is mentioned in the former part of this opinion. After the receivers had been appointed'and had taken the property into their possession, an application was made to the court to permit the sheriff to complete his -levy under the attachment. This application was resisted by the receivers, and was.' denied, and from the order denying it this appeal is taken.
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Rumsey, J.:
The Columbia Spinning Company was a foreign corporation organized under the laws of. the State of Massachusetts. . On the 15th day of April, 1897, an action was begun in. that State by certain stockholders and directors of that company to dissolve the corporation, and on that day receivers were appointed of the property of the corporation who took possession of all its property in that State. On the saíne 15th day of April, 1897, the Merchants’ National Bank of the city of New York brought an action against, the Columbia Spinning Company to recover a debt due^ from that company to it, and on that day obtained a warrant of attachment against the property of the defendant corporation. On. the same day the deputy sheriff, in whose hands the warrant had been placed for service, went to- the place of business .of the firm of O. H. Sampson & Co. in the city of New York, and stated to one-of the members of the firm that he had in his possession the warrant of attachment against the property of the Columbia Spinning-Company under which he had come there to levy upon its property which was then, as he supposed, in the possession of the firm,, and requested Sampson to tell'him what property of the defendant, the said firm had in their possession and under their control.' Sampr son, to whom the application was made, denied that the firm had. any property of the defendant. On the nineteenth of April the= deputy sheriff went to the office of Catlin & Co., and, applying to-on e of the members of, that firm, said to him that he held a war[501] rant of attachment against the property of the Columbia Spinning Company, under which he desired to make a levy on the property of the defendant in their possession, and asked him whether the . firm of Catlin & Co. had any of the property of the Columbia Spinning Company in its possession. By them also he was told that they had no property of the company in their possession and under their control. Acting upon the information thus conveyed, the deputy sheriff took no further steps to levy the attachment upon the property of the defendant in the possession of either of those firms. Subsequently the sheriff demanded of each firm a certificate specifying .the amount, nature and description of the property of the defendant which they held, and a certificate was furnished on the 5th day .of May, 1897, by Sampson & Co. No certificate seems ever to have been furnished by the firm of Catlin Co. At the time of making the application to these two firms, respectively, the sheriff delivered to each of them a certified copy of the warrant and the papers upon which it was granted, and a notice advising them of the intention of the sheriff to levy upon the property in their hands, and requiring them to deliver all that property to him. and .to furnish, a certificate. At the time when the above inquiries were made' of these two firms, respectively, they had in their possession a considerable amount of personal property capable of manual delivery, which was owned by the Columbia Spinning Company, and there is no doubt that when they informed the sheriff that they had no such property, they told him what was not the truth, although they supposed the statement to be true. Subsequently, and on the 28th of April, 1897, the plaintiff Charles L. Robinson brought an action against the Columbia Spinning Company in this court in which he set up the pendency of the action in Massachusetts, and the. appointment of receivers in that State, and asked for the appointment of auxiliary receivers in the State of New York to take the property of the corporation in this State, and. hold it subject to the order of the court here. That application was granted, and receivers were appointed and qualified on' the twenty-eighth of - April, and took possession of the property. Up to that time no certificate had been procured by the sheriff and no levy under the attachment had been made, and none had been attempted except by the application o-f the.deputy sheriff to the [502] members of these two firms as is mentioned in the former part of this opinion. After the receivers had been appointed'and had taken the property into their possession, an application was made to the court to permit the sheriff to complete his -levy under the attachment. This application was resisted by the receivers, and was.' denied, and from the order denying it this appeal is taken.
The right to issue .a warrant of attachment as a provisional'remedy is one that depends upon the statute, and has no existence outside of the statutory provisions. The cases in which it can be granted, as well as the procedure necessary to make it effective, are prescribed by the statute, which must be followed to make the remedy effective. (Blossom v. Estes, 84 N. Y. 614.) Among these provisions is one prescribing the way in which an attachment must be levied in order to complete the lien. (Code Civ. Proc. § 649.) It directs that upon personal property capable of manual delivery,, the levy must be made by taking the same into the sheriff’s actual custody. There is no other provision than that for making a levy on property like that sought to be taken here. Nothing else will constitute the levy, and until the officer has obtained the actual custody he has made no levy and can make none. (Anthony v. Wood, 96 N. Y. 180, 187.) The lien of an attachment arises only by the making of a levy, and in that respect it differs from an execution as to. which.the law prescribes that the personal property of the debtor is bound by the delivery of the execution to the sheriff to be executed; but there is no such provision in regard to an attachment, and, therefore, no lien is acquired by the delivery to the sheriff of the warrant,, nor does one come to exist until the levy is actually made, under the warrant, in the precise .manner prescribed by the statute. (Burkhardt v. Sanford, 7 How. Pr. 329; American Exchange Bank v. Morris Canal & Banking Company, 6 Hill, 363.) It is not claimed that any such levy was made in this case as the statute prescribes, but the claim is that, because of the statement made to the deputy sheriff by the agent of the ■ defendant, the sheriff was prevented from completing the levy which he would otherwise have made, and acquiring the lien which he would otherwise have acquired; and in the exercise of its equitable powers, the court, should perfect the lien which the sheriff was precluded from making. If it could be said that there was any power in the court to-[503] complete a lien which was left imperfect because of. the failure of the sheriff to complete it for any reason, which is very doubtful, this is not that case. It cannot be said here that • the sheriff took steps to make a levy which he left incomplete. He did nothing of the sort. The only way in which the levy could be made was by taking possession of the property, and until that was done there was no more a levy upon the property which gave the attachment priority than existed when the attachment was given to the sheriff, and before he had taken any steps to make the levy. The question is not a question of equitable right, but a pure question of law, whether the thing is done which the law says is necessary to be done to create a lien that did not exist until the particular act had taken place. So far as the legal rights of the parties are concerned, the case is precisely upon the same footing as any other case in which there is a race between two diligent creditors. The one who first completes the act which entitled him to his relief, in the nature of things, gets the priority. The only way in which it could be claimed that the court had the right to interpose in this matter was because of the false statement of the agent of the defendant. But that statement operated to prevent the doing of the act which alone could constitute the lien, and there is no provision of the statute which gives to the court the right to interpose its equitable powers and free a person who has attempted to secure a legal lien from the effect of any mistake which makes his attempt unavailing. The sheriff, in this case, might have taken steps to discover the truth. Had he done so, undoubtedly, he could have made a levy upon this property before the appointment of the receivers, and, if he had done.that, the levy would have been perfect and the lien complete. But the trouble with the appellant’s case is that there is no possibility of making a levy unless the officer does the precise thing which the statute requires, and there is no statutory provision for completing the levy which the officer has failed to make in the-way the statute requires.
For this reason, the order of the court- denying the motion was correct and must be affirmed, with ten dollars costs and disbursements,
Van Brunt, P. J., and O’Brien, J., concurred.; Ingraham and Patterson, JJ., dissented/