#### Bernard S. McKean, as Receiver of the United Life Ins. Assn., Plaintiff, *v.*The National Life Assn., Defendant.

(Supreme Court, New York Special Term,

September, 1898.)

Attachment — Stay — Appeal.

A notice filed pursuant to Code of Civil Procedure, § 649, subd. i, in a county clerk’s office upon a levy made by virtue of a writ of attachment upon real estate, where judgment has been rendered in favor of thé defendant, will not be cancelled, when a stay of proceedings pending an appeal has been granted.

*512Motion to cancel notice filed with county clerk,, as required by subdivision 1 of section 649, Code Civil Procedure, where attachment is levied upon real property. • •

Edwin D. Worcester, Jr., for motion.

Campbell *&*Hance, opposed.

Beekman, J.

The plaintiff having obtained an attachment against the property,of the defendant, on the. ground that it was. a foreign corporation, caused its real estate to be levied upon, and a notice in that behalf to be filed with the county clerk, as required by subdivision 1 of section 649 of the Code of Civil Procedure. Since then the case has gone to trial, and a verdict for nominal damages having been awarded to the plaintiff, judgment has been entered in favor of the defendant for a sum representing its taxable costs, less the sum of six cents, which was the- amount of plaintiff’s Verdict. The trial justice, as appears from the. minutes, of the court, granted to- the plaintiff a stay of execution for sixty days after notice of entry of judgment. That stay is still operative. Furthermore, it appears that the plaintiff has served a notice of appeal from the judgment to the Appellate Division, and intends in good faith to prosecute his appeal and to- stay proceeding's during its pendency in the manner provided by law. The defendant- now-moves for an order canceling the notice filed oh the levy made upon the real estate, under section 711 of the Code of Civil Procedure, which provides that where an attachment ■ has been Vacated or ■ annulled, or has been discharged as to' real property attached, the court may, in its discretion, direct any such notice to be canceled of record. ' Section 3343 of the Code, subdivision 12, declares that an attachment is* said to be “ annulled ” when the action in which it was granted abates; or is discontinued; or a final' judgment rendered therein in favor of the plaintiff is fully paid; or a final judgment is rendered therein in favor of the defendant. - In the latter case, however, it is further provided that “ a. stay of proceedings suspends the effect of the annulment, and the; reversal or vacating of the judgment revives the; warrant.” The counsel for defendant contends'that the stay of proceedings thus referred to means something more than a stay of execution- such as the plaintiff now has' or may acquire on giving security on- appeal- . In this I find myself unable to agree with him. What other kind of stay *513of proceedings after entry of a money judgment could be obtained, or even would be desirable, it is somewhat difficult to imagine. Clearly, what the legislature had in mind was the protection of the plaintiff in whatever he had secured under his attachment pending an appeal or motion to vacate. To that end it was properly considered not enough to provide for a revival of the warrant, if'the judgment should be vacated or reversed, for in the meantime the benefits of the levy would be lost, and there might be no property which could be reached upon such revival. To avoid any such result, and to afford a full measure of protection to the plaintiff, it was, therefore, provided, as I read the statute, that the effect of the annulment should be suspended, if proceedings for the enforcement of the judgment are stayed during the pendency of the attack upon the judgment by motion to vacate it or on appeal. It seems to me that this is not only an intelligible, but even a necessary, construction of the section of the Code in question. I am, therefore, of the opinion that the effect of the annulment of the warrant in this case has been, suspended by the stay which has been granted, and that the motion to cancel the notice filed with the county clerk on the levy must be denied. The defendant also moves to vacate the attachment upon the papers on which it was granted. I hardly think that it is proper to entertain this application at the present, time. The warrant really stands annulled by operation of "law,although the effect of the annulment for certain purposes is suspended by the stay. Should the warrant be revived by a reversal of the judgment, the defendant will then be in a position to make such a motion.

Motion denied, with $10 costs.