
    Theodore Haebler et al., App’lts, v. Elijah Myers et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Attachment—Restitution.
    Plaintiffs’ attachment was set aside and the moneys in the sheriff’s hands paid to defendants as subsequent attaching creditors. On appeal the order vacating the attachment was reversed. Held, that such reversal did not revive the attachment with all its primitive advantages intact; that defendants did no wrong in accepting the money, and that an action for restitution thereof could not be maintained.
    Appeal from judgment sustaining demurrer.
    The opinion at special term was as follows:
    Yan Brunt, P. J.—The complaint in this action alleges that in April, 1888, the plaintiffs issued to the sheriff of Hew York an attachment in an action in which these plaintiffs were plaintiffs and John Gr. Bernharth and lienors were defendants. That the sheriff levied said attachment, and by reason of such levy received the sum of $900. That in Hovember, 1888, upon motion of the defendants, as subsequent lienors, an order was entered vacating the plaintiffs’ attachment. That thereupon the sheriff paid over to these defendants as subsequent lienors said $900, which he had collected under the attachment issued to him by the plaintiffs. In the same month the plaintiffs obtained judgment in the action in which the attachment was issued for $1,257.91, and issued an execution thereon, which was returned unsatisfied. In October, 1889, the court of appeals reversed the order vacating the attachment, and denied the motion made by the defendants to vacate the attachment. Haebler v. Bernharth, 115 N. Y., 459 ; 26 N. Y. State Rep., 230. The restitution of the said $900 has been demanded and refused, and judgment of restitution is asked for. To this complaint the defendants demur upon the ground that the complaint does not state a cause of action against them in favor of the plaintiffs. I fail to see how this action can be maintained. The defendants have received nothing from the plaintiffs which they are bound to restore to them. The inference to be drawn from the allegations of the complaint is that the sheriff has realized out of the property of John Gr. Bernharth and others, upon attachments against them, the sum of $900, and that he has paid such sum over to the defendants in this action upon an execution issued to said sheriff against the property of said Bernharth and others in their favor. It is true that, but for the vacation of their attachment, the plaintiffs in this action would have been entitled to receive that money, but, that attachment having been vacated, the sheriff was bound to pay to the party next entitled, and this he did, and the lien of the plaintiffs seems to have been lost. It does not seem to be very material upon whose motion the attachment was vacated The same result would have followed had the motion to vacate been made by the defendants in the attachment. In all the cases cited where restitution has been ordered or decreed the party whose money or property had been taken was the moving party, not a party who had lost a lien because of an erroneous decision of the court; and that is all that the plaintiffs had by reason of their attachment The property was not theirs, but belonged to the defendants in the attachment until it was devoted to the payment of the defendants’ execution. I do not see how the defendants are under any liability to the plaintiffs in an action like the present one because the sheriff has paid them their execution out of property upon which they formerly had a lien of which they were unjustly deprived. The demurrer must be sustained, with costs.
    
      M. P. Stafford, for app’lts ; M. H. Gardozo, for resp’ts.
   Brady, J.

Aside from the reasons given by the presiding justice, it may be said that the plaintiffs’ duty, if they hoped to protect their lien by a successful appeal, required a stay of proceedings, for which application should have been made, and which would doubtless have been granted. The plaintiffs and defendants were both lienors, the right of each dependent upon the validity of the attachment by which the lien was created, and both subject to such disposition of it as might be made by the courts. When the plaintiffs’ attachment was set aside the defendants’ took priority — indeed of all the remaining attachments if there were any—and it became the duty of the sheriff to pay the money to them. They did not receive money which belonged to iho plaintiffs, inasmuch as their supposed lien was declared worthless. It was the money of the judgment-debtor which they " received, and to which they were entitled by the law as then declared.

There is no provision of law by which an attachment discharged by competent authority can be revived by the reversal of the judgment destroying it with all its primitive advantages intact. The subsequent attaching creditor does no wrong in accepting the money under such circumstances. He avails himself of the law as declared, the result of which might be prevented by the diligence of the defeated attaching creditor in obtaining a stay of proceedings, as already suggested.

The judgment appealed from should be affirmed, with costs.

Daniels, J., concurs.  