#### Marcus Sergey Friede, Appellant, *v.*Achille Weissenthanner, Respondent.

(Supreme Court, Appellate Term,

May, 1899.)

¡Attachment — Nullified by judgment for the 'defendant, who cannot thereafter move to vacate — Effect of plaintiff’s stay after, verdict.

Where the trial of an action of attachment has resulted in an affirmative judgment for the defendant upon his counterclaim, the City Court of the city of New York has no power to entertain a motion by the defendant to vacate the attachment, as the judgment has nullified it. At most the defendant would only be entitled to a formal order declaratory of that fact.

The fact that the plaintiff, • after the rendition of the verdict obtained a stay and continued it by an undertaking on appeal, does not assist the defendant, as the annulment of the attachment by the judgment leaves nothing to vacate or enforce pending the appeal. . Friede v. Weissenthanner, 26 Mise.' Rep. 857, reversed.

Appeal from an order of the General Term of the City Court, reversing an order of the Special Term, of the City Court, denying respondent’s motion to vacate an attachment.

Benjamin Tuska .(Moses R. Ryttenberg, of counsel), for appellant.

George W. Cotterill and Ira Leo Bamberger, for respondent..

Leventritt, J.

On the 26th day of December, 1895, this action was begun by the issuance of a warrant, of attachment against the property of the defendant, a nonresident. Ho proceedings were taken to dissolve the warrant until after the trial of the cause on the 11th day of Hovémber, 1898, which resulted in an 'affirmative judgment for the defendant on a counterclaim. Then the defendant moved on the. judgment-roll, affidavits and the papers on which the warrant had been granted to have it vacated and set aside. This application was opposed on counter affidavits. The denial of the motion at the Special Term was reversed at the General Term, and an order entered vacating the attachment. Hence this appeal.

I am of the opinion that the City Court was without power to entertain the motion to vacate the attachment. It was annulled *519by the judgment rendered in favor of the defendant. Code Civ. Pro., § 3343, subd. 12. In the absence of a stay of proceedings pending appeal the attachment would unquestionably have been entirely vacated for all purposes and could not have been revived. The judgment destroyed and nullified the warrant of attachment, and while the defendant would have been entitled to a formal order declaratory of that fact (Corn Exch. Bank v. Bossio, 8 App. Div. 306) he obviously could not institute a proceeding to kill" that which no longer had life. That, indeed, would be legal supererogation.

The defendant contends, however, that the stay of proceedings obtained by the plaintiff immediately on the rendition of the verdict and continued by the subsequent Undertaking on appeal, suspending the effect of the annulment (Code Civ. Pro., § 3343, subd. 12), preserved the vitality of the warrant, which was, therefore, still liable to attack. This contention is founded on a misconstruction of the language and spirit of the Code and of the intention of the legislature. The enactment of this provision was intended to protect the plaintiff in the event of a reversal of an erroneous determination of the issues at.the trial court. Otherwise, his victory might be barren, for, even though successful on appeal, the'.plaintiff would find all the benefits acquired by his levy under the attachment dissipated by the prior nullification. To avoid that result the Legislature, without continuing the life of the attachment, suspended the effect of its annulment. Pending the appeal there is nothing to- enforce or vacate; the stay does not alter the situation because, notwithstanding its existence, the provisional remedy is nullified. But if the appeal results favorably - to the plaintiff, then, in order to relieve against all the consequences of the error below, the law, as it were, recreates the attachment by reviving it and restoring to it the life it had before the nullification. The reversal reaches .back and reinvests the plaintiff with all the rights enjoyed before the error was committed. Henry v. Salisbury, 33 App. Div. 293; McKean v. National Life Association, 24 Misc. Rep. 512.

"Whatever form the attack may take during the period between the rendition of the judgment and the determination of the appeal, whether supported by affidavits or resting on the judgment alone,' it must fail because nothing exists against which it can be directed. The law did not contemplate any such anomalous situation, which should shield the plaintiff’s rights with one hand, and destroy them with the other. . ,

*520Section 682 of the Code of Civil Procedure, providing that a motion to vacate an attachment may be made at any time before the actual application of the attached property or the proceeds ' thereof to the payment of a judgment recovered in the action, cannot be successfully invoked by the respondent, because that section necessarily presupposes- the existence of an attachment. Here, until reversal, no attachment exists. . . , • "

There is no force in the contention that the order under review is not appealable. The disposition of this appeal does not involve the weighing of conflicting evidence, ñor the decision of controverted facts in the áffidavits presented below nor the "review of the ■discretion exercised by.the General Term of the City Court, It involves merely the power -of the City Court to "entertain the. application, and that question is always reviewable.

The order should .be reversed.

Fbeedman, P. J., concurs.

MacLean, J. (concurring.)

An attachment was iskued -in this action upon the application and affidavit of the plaintiff, who was unsuccessful at the trial, and against whom - judgment was entered ' on the llthday of November, 1898., From that judgment plaintiff appealed, and filed an undertaking on appeal the 29th-dáy of November, .1898. On November 23, .1898, the defendant, on his own affidavit, the judgment-roll, warrant of attachment, and the affidavit upon which the warrant- was originally issued, procured an order to show cause why the attachment should not -be vacated. This motion, heard upon the papers mentioned above, and upon ah Opposing , affidavit of the plaintiff, was "denied by a justice at the Special .Term, in an order entered on " the 21st day Of December, 1898, and properly, because as the .warrant had been annulled-by the judgment in "favor of the defendant (subd. 12, § 3343, Code Civ. Pro.), *“*The statute having" thus provided,, it would not be proper for the court to take upon itself to make any other direction as to the warrant than that which the Legislature has seen fit to . give.” Henry v. Salisbury, 33 App. Div. 293. From the order . denying the motion the defendant appealed to the General Term of the City Court, which reversed the order below and vacated the attachment. The order of the General Term should be reversed.

Order reversed, with costs to the appellant to abide the "event.