
    William Risk, Resp’t, v. Richard Uffelman et al., App’lts.
    
      (New York City Court, General Term,
    
    
      Filed December 8, 1893.)
    
    1. Attachment—Vacation.
    A justice of the district court can, on the return day of the summons or at any other time to which the action is adjourned, vacate a warrant of attachment and dismiss the action.
    
      % Same—Sureties.
    In such case, the defendant therein has a right of action against the sureties on the undertaking on attachment.
    Appeal from a judgment in favor of plaintiff.
    
      Uriah W. Tompkins, for app’lts; James R. Angel, for resp’t.
   McCarthy, J.

The justice of the district court had jurisdiction and control over all processes issuing ont of his court and could on the return day of the summons, or at any other time to which the action was adjourned, vacate the warrant of attachment and dismiss the action. Section 2916, 2917, Code of Civil Proc. The original summons and papers in the case of Tilly Seligman v„ Risk were not returned to the court on the morning of the return day of the summons, but the defendant who had been served with a copy of the summons and papers on the attachment voluntarily appeared and answered, and during the regular proceedings of the court, the justice, on motion of defendants’ attorney, called the parties to the action, and plaintiff failing to appear, vacated the attachment and dismissed the action. This was done on the copy summons and other papers and he had the power to do so. When the attachment was vacated and the action dismissed, the plaintiff therein had a right of action against the sureties on the undertaking on attachment The questions, as to whether a levy had been made, and as to whether the property was sold by the marshal, or under his directions, were disputed ones, and were therefore properly left to the jury, and on such questions their finding is conclusive.

We find no material error in the case and judgment should, therefore, be affirmed, with costs.

Ehrlich, Ch. J., concurs.  