¶1(concurring). — My brothers, Brady and Daniels, not concurring in their views in this case, it becomes necessary that I should state the grounds on which I think the disposition of the appeal should be made.
¶2The action is brought to recover for goods sold and delivered» It is, therefore, an action upon contract In such an action, under the provisions of section 549, subdivision 4, where, for the purpose of arresting the defendant, it is claimed that-the defendant was guilty of a fraud in contracting or incurring the liability, it is necessary that the allegations of fraud should be made in the complaint in issuable form, so that they may be tried by a jury or by the court; but this fact does not change the action from one upon contract It only affects the remedy, provisional and final, and subjects the plaintiff, if he fail to prove the alleged fraud, to bring a new action upon the contract as one not sc fraudulently contracted. As the action, notwithstanding the allegations of fraud, continues to be one upon contract, there seems, to me, no reason why the attachment may not be sustained. The case relied upon by Brady, J., is not applicable (Wiltner agt. Von Minden, 27 Hun, 234). That was a case where the action was brought to recover damages for an alleged fraud, and not to recover the purchase price of goods sold and delivered.
¶3If the question decided in Wiltner agt. Von Mindenwere an open one, it might well be doubted whether the attachment, in this case, could not be upheld under the 3d subdivision of section 635 of Code, which gives an attachment in an action for any injury to personal property in consequence of negligence, fraud or other wrongful act, and under the definition of injury to property — section 3343, subdivision 10 of Code — the inducing of a sale and delivery of property by fraudulent representations, is clearly an act for which an attachment is allowable.