Arnold v. Morris. plying creditor of the said debtor, assign the said bond, without fee or reward, to such person as the court shall direct, to be prosecuted for the benefit of the plaintiff and such creditors as shall have applied to the court or auditors under such attachment in conformity to this act." The 37th section provides: "That if the said defendant, instead of giving any of the bonds before mentioned, shall make, execute, and file in the office of the clerk of the court out of which an attachment shall have issued, a bond with. two or more sureties, to be approved by said court or a judge thereof, to the plaintiff in attachment, and a like bond to each of the creditors, who shall have applied as aforesaid, in double the sums respectively sworn to by them, conditioned for the payment of such moneys as may be adjudged to be due to them severally; and shall also enter his appearance to the suit of the said plaintiff and each of said creditors; then it shall be lawful for the said court or a judge thereof, either in term time or vacation, if it shall appear just so to do, to order the said attachment to be set aside, and that both the real and personal estate of the defendant be released and discharged from the lien thereof." The 41st section provides that it shall be the duty of the officer by whom any writ of attachment shall be executed to deliver any property attached by virtue of such writ to the person in whose possession the same is found, upon the execution, in the presence of the officer, of a bond to the plaintiff by such person with one or more sufficient sureties in double the value of the property, conditioned that the defendant shall perform the judgment of the court in the action, or that the property or its value shall be forthcoming, and subject to the order of the court for the satisfaction of such judgment. The undertaking executed by the Musers was under the last section, which does not, in terms, refer to applying creditors, nor provide for the enforcement of their judgments against the attached property, or the obligors in the undertaking. It was not shown on the trial that such a liability Arnold v. Morris. had ever been enforced against the sureties; but, on the other hand, it had not been denied, and the question is in doubt. Looking at the intention and spirit of the statute taken in connection with the other provisions of law on the subject, it does not seem difficult to reach a conclusion. The 41st section affords the defendant in attachment a more summary mode of relieving his property than those permitted in the 33d and 37th sections. Such an enactment in no wise warrants the supposition that the rights of applying creditors were to be cut off by it, and the property freed from their liens. This would render all the other provisions of the law practically useless, since the easiest form of proceeding by the debtor yielded him such greater benefit. The 41st section is not inconsistent with the provisions of law permitting other creditors to be admitted to the benefit of the attachment, and does not supersede it; it appears to me, in fact, to provide generally for their security. It will be seen that the undertaking executed by the Musers under that section (41) was conditioned that the defendant shall perform the judgment of the court in the action, or that the property or its value shall be forthcoming and subject to the order of the court for the satisfaction of such judgment. Under the provisions of the statute, other creditors of the defendants in that action applied in the action and recovered judgments in their favor. The aggregate of their judgments and that of Falconer & Co., the plaintiffs in the action, amounted to more than $6,312 50. These together formed the "judgment in the action for the satisfaction" of which the Musers undertook that the attached property should be forthcoming. The applying creditors had no remedy except to file their affidavits of claim; issue was joined between each applying creditor and the defendants in attachment as well as between the latter and the plaintiffs in the attachment; those issues were tried together and judgments entered in favor of all the creditors. In case of default, one judgment would be entered up in favor of the plaintiff and all the applying creditors, and for their benefit. Here there Arnold v. Morris. were several judgments, but all in the same attachment proceeding, and there was really but one action, and, it follows, but one judgment, though in favor of different parties for different amounts. The obligation of the Musers to produce the attached property for the satisfaction of the judgment in the action would not have been performed by merely satisfying the judgment of Falconer & Co., the plaintiffs. The opinion expressed by the witness Gilbert Collins, Esq., an attorney and counsellor-at-law in the courts of New Jersey, and his reasons for his opinion, seem to me to be satisfactory, although the questions arising upon the facts are not free from doubt, as stated by Richard Wayne Parker, Esq., the other counsel examined on the point. The next question is as to the proceeds of goods put in the Hoboken store after the creation of the trust in plaintiffs' favor, in order to replenish the stock and keep it up to its value at the time of such trust. If the agreement between Rouss & Bell and plaintiffs were that the former might sell the goods then in the store pledged to plaintiffs, and substitute others for them, which might in time be sold and their place supplied, the plaintiffs' lien to open and shut, to let out and take in, and finally to attach to whatever might remain when the plaintiffs chose to enforce it, I should have little hesitation in holding the agreement invalid. No such fatal intention is to be assumed from the mere fact that the defendants (not the plaintiffs) spoke of keeping the stock "replenished" to its then value. An agreement to secure plaintiffs by a lien on stock which defendants might dispose of next day, or by a lien on goods that they might thereafter buy, would be no security, as it would give no lien. To give any meaning or force to the agreement we must construe it according to the positive promise to hold the goods" for plaintiffs' indemnity or security, without considering the vague and unexplained addition as to replenishing the stock. If, therefore, Rouss, Bell & Co., holding the stock in trust for plaintiffs' security, without the latter's knowledge or consent, disposed of parts Cushing v. Vanderbilt. of it, and put in other stock to supply its place, the latter mingled with the former and became subject to the trust. The judgment should be affirmed, with costs. CHARLES P. DALY, Ch. J., concurred. Judgment affirmed with costs. THOMAS CUSHING, against PETER J. VANDERBILT. (Decided February 8th, 1878.) Where, on appeal from a judgment of a District Court of the city of New York to this court, the appellant desires, in addition to a reversal of the judgment, the restitution of money collected from him under an execution on the judgment appealed from, he should apply at the time of arguing his appeal for restitution in case the judgment should be reversed, and in case he omits to do so, but succeeds in having the judgment reversed, he should apply for a reargument on that point. Where the judgment of reversal is not a final determination of the rights of the parties, restitution of the money collected on the judgment reversed is not a matter of right, and on appeals from District Courts, in which there is no power in this court to order a new trial, but a new suit may be brought to which the judgment of reversal would not be a bar, the general term of this court which hears and decides the appeal is the proper branch of this court to decide the question of restitution, and the special term will not entertain the application. MOTION by the defendant at special term to compel restitution by the plaintiff of moneys collected by him on an execution against the defendant on a judgment of the 7th District Court, which judgment was reversed on appeal by the general term of this court. Matthew L. Harney, for the motion. Wm. H. McDougall, opposed. Hynes v. McDermott. JOSEPH F. DALY, J.-Where the judgment of reversal is not final, it is not a matter of right to have restitution of moneys collected on the judgment reversed. (Marvin v. The Brewster Iron M. Co., 56 N. Y. 671, and cases cited.) This is the rule in cases where the appellate court has power to order a new trial and does so. On appeal to the Court of Common. Pleas from the District Courts of this city, there is no power to order a new trial; but the judgment of reversal, if not a final determination of the rights of the parties, is no bar to a new action by the respondent for the same cause. If the respondent have the right to begin a new action he would seem to occupy the same position as a plaintiff in courts of record, who is entitled by the judgment of reversal to a new trial; and the right of the appellant to restitution must be equally within the discretion of the appellate court. The question whether the judgment of reversal is final or not is for the general term which renders it to decide, and the appellant should apply at the time of arguing his appeal for restitution if the court decide to reverse the judgment against him. In case he omits to do so, but succeeds in having the judgment reversed, he should ask for a reargument on that point if entitled to it. Motion denied with $10 costs. MARY ELIZA HYNES et al. against KATE MCDERMOTT et al. (Decided March 4th, 1878.) The decisions upon the construction of §§ 390, 391 of the old Code of Procedure, as to what must be shown to sustain an order for the examination of an adverse party before trial, are not applicable to the construction of the provisions of § 870 et seq. of the new Code of Procedure upon the same subject. Under the new Code of Procedure, a party applying for the examination of an adverse party before trial need not show such facts as would have sustained a bill for a discovery in equity, and the rules applicable to bills of discovery do not apply to such applications. VOL. VII.-33 |