
    Quon Kee, Appellant, v. The Hip Sing Tong Society, Respondent.
    (City Court of New York, General Term,
    November, 1898.)
    Foreclosure of lien on chattel — Warrant — Discharge.
    In an action to foreclose a lien on a chattel, of which the plaintiff is not in possession, he may, under section 1738 of the Code of Civil Procedure, procure a warrant commanding the sheriff to seize the chattel and safely keep it to abide the final judgment, but this does not preclude the defendant from applying, under section 687 of the Code of Civil Procedure, for the discharge of the warrant, and a discharge may be granted on proper security.
    Appeal from an order of the Special Term, fixing the amount, of the undertaking to be given by the defendant and discharging, the warrant issued herein.
    J. P. Solomon, for appellant.
    La Fetra & Glase, for respondent.
   O’Dwyer, J.

This is an action brought to foreclose an alleged lien on certain property of the defendant corporation. A warrant, was issued ex parte to the sheriff, to seize the chattels and a levy was made and the chattels taken into the possession of the sheriff.

Thereafter an ex parte application was made by the defendant, to the court for an order fixing the amount of the undertaking to-be given on discharge of the levy, and an order was made fixing the amount at $200. The undertaking in that amount on behalf of defendant was forthwith filed and served with notice on plaintiff’s attorney. Notice of exception to the undertaking was served,, and the sureties duly justified before the court. Upon the justification objection was also raised to the sufficiency of the appraisal of the goods seized, and it was stipulated in open court, that the plaintiff and defendant should each appoint an appraiser, which was thereupon done, who should proceed to appraise the goods as found in the possession of the sheriff, and that each side-should report the following morning at the opening of the court.

Defendant attended at the appraisement made on its behalf but plaintiff defaulted with his, although appearing by counsel, whereupon, after hearing full argument on the legal points involved, the court approved of the form of the undertaking and the sufficiency of the sureties, and entered an order denying the ex parte motion, to vacate the order discharging the warrant and directing the amount of the undertaking to remain as therein fixed.

It is urged by the appellant that the appeal, involves three questions; first, the right of the defendant to discharge said warrant at all; second, whether the amount of the undertaking is sufficient; and lastly, whether the form of the undertaking is the proper one in the circumstances. •

The appeal from the order of November 12th denying the motion to vacate the order discharging the warrant and directing the amount of the undertaking to remain therein fixed has been dismissed on the argument. That dismissal disposes of the grounds advanced in the second and third propositions, and the only question before us now for decision is the right of the defendant to have the warrant discharged.

Actions to foreclose a lien on a chattel are regulated by sections 1737 to 1741, inclusive, of the Code, and in section 1738 it is provided that “ Where the action is brought in the supreme court, the city court of the city of NTew York or a county court, if the plaintiff is not in possession of the chattel, a warrant may be granted by the court or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide final judgment in the action. The provisions of title three of chapter seven of this act apply to a warrant, and to the proceedings to procure it and after it has been issued, as if it was a warrant of attachment except as otherwise expressly prescribed in this article.”

The sections thereby made applicable as to all subsequent procedure include:

§ 687. Defendant may apply for discharge of attachment.— The defendant may, at any time after he has appeared in the action, and before final judgment, apply to the judge who granted the warrant, or to the court, for an order to discharge the attachment, as to the whole or a part of the property attached.”

The provision contained in section 1738 requiring the sheriff to safely keep the chattel to abide the final judgment in the action is qualified in the very next sentence by malting the provisions of the Code relative to attachments applicable.

It follows that the order appealed from should be affirmed, with costs.

Fitzsimons, Oh. J., concurs.

Order affirmed, with costs.  