Flick v. Wyoming Valley Trust Co.

133 N.Y.S. 1066 | N.Y. App. Div. | 1912

Dowling, J.:

This action is brought to recover the sum of $3,913.74 damages for an alleged conversion of stock. On April 27, 1908, a warrant of attachment was duly issued based on an affidavit showing among other things that defendant was a foreign corporation, organized under the laws of the State of Pennsylvania. Upon the granting of the warrant plaintiff furnished security in the sum of $250, which was afterwards increased to $500. The action then proceeded to trial and, on October 27, 1911, a verdict having been rendered for the defendant by direction of the court judgment was duly entered thereupon. Thereafter, on December 11, 1911, plaintiff appealed from said judgment to this court, but gave no security upon such appeal, whereupon defendant on December twentieth moved for an order directing plaintiff to file an additional undertaking in the sum of $2,500. An order was made on January 9, 1912, grantingthe motion to the extent of requiring plaintiff within ten days to file an additional undertaking to the effect that if the judgment herein should not be reversed, the plaintiff would pay ah costs which had been or might be awarded to the defendant .and all damages which it has sustained or might sustain by reason of the said attachment, not exceeding $1,500, and further providing that in case plaintiff should fail to file such additional undertaking all proceedings of the plaintiff and upon his appéal were stayed. From such order this appeal is taken.

When the order in question was made final judgment had been entered in favor of the defendant. The warrant of attachment was, therefore, annulled. (Code Civ. Proc. § 3343, subd. 12.) That is, upon the entry of such judgment in favor of defendant the warrant became entirely vacated and of no force for any purpose. (Henry v. Salisbury, 33 App. Div. 293; Friede v. Weissenthanner, 27 Misc. Rep. 518; McKean v. National Life Association, 24 id. 511.) There is but one method by which the entire annulment of the warrant can be avoided after judgment in favor of the defendant, and that is hy the means indicated in the section above referred to, which provides as follows, so far as is material to this appeal: “A warrant of attachment against property is said to be ‘ annulled ’ when * * * a final judgment is rendered therein in favor of the defendant. But, in the case last specified, a stay of proceedings suspends the effect of the annulment, and the reversal or vacating of the judgment revives the warrant. ” In this case no stay of proceedings has ever been obtained, and the warrant was, therefore, finally annulled. (See cases cited supra.) The warrant being no longer in force the court was without power to require plaintiff to give further security thereupon.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion in all respects denied, with ten dollars costs.

Clarke, McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.