53 N.Y.S. 980 | N.Y. Sup. Ct. | 1898
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
Motion denied, with $10 costs.