
    Risk v. Uffelman.
    (City Court of New York—General Term,
    December, 1893.)
    The j ustice of a District Court has jurisdiction and control over all processes issuing out of his court, and can, upon the return day of the summons, or upon any adjourned day, vacate a warrant of attachment and dismiss the action.
    He may do this upon the copies served on the defendant, where the originals have not been returned, and the defendant voluntarily appears and answers.
    When the attachment is thus vacated and the action dismissed the defendant has a right of action against the sureties on the undertaking on attachment. §i
    Appeal from judgment in favor of plaintiff in an action against the sureties upon an undertaking given to procure an attachment in a District Court.
    
      Uriah W. Tompkins, for defendants (appellants).
    
      James R. Angel, for plaintiff (respondent).
   McCarthy, J.

The justice of the District Court had jurisdiction and control over all processes issuing out 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. Code Civ. Proc. §§ 2916, 2917.

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 defendant’s attorney, called the parties to the action, and plain tiff 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 herein 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, them finding is conclusive.

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

Ehblich, Ch. J., concurs.

Judgment affirmed, with costs.  