
    Lillian Mae Tiedeman, Respondent, v. William Carl Tiedeman, Appellant.
    Second Department,
    June 29, 1916.
    Husband and wife — separation-—right of defendant after final judgment to return of moneys deposited with court.
    Where in an action for separation a final judgment has been rendered for the defendant, he is entitled, under section 585 of the Code of Civil Procedure, to moneys deposited in the action to secure his release from an order of arrest, although an appeal has been taken by the plaintiff.
    Appeal by the defendant, William Carl Tiedeman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of April, 1916, denying his motion for an order directing the city chamberlain of the city of New York to pay over to him certain funds on deposit in this action.
    
      Adolphus D. Pape [Julian V. Carabba with him on the brief], for the appellant.
    
      J. Tobias Goldberg, for the respondent. ■
   Stapleton, J. :

A wife sued her husband for a separation. She procured an order of arrest granted by the court. The order was executed. The defendant deposited with the sheriff the sum specified in the order and was thereupon discharged. The sheriff paid the deposit into court". Final judgment for the defendant was rendered. The defendant applied for an order refunding the deposit. His application was' denied. The Code provision is plain: “If the final judgment is for the defendant, * * * the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative.” (Code Civ. Proc. § 585.) The plaintiff’s attorney deposes she instructed him to appeal from the judgment. The circumstance that she did appeal would be immaterial. The final judgment contemplated by the Code section cited has been rendered. (See Wilson v. Ryder, 11 N. Y. St. Repr. 279.)

The order should be reversed, and the application granted.

Jenks, P. J., Thomas, Caer and Putnam, JJ., concurred.

Order reversed, without costs, and application granted.  