
    Market National Bank of New York, appellant, v. Pacific National Bank of Boston, respondent.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Attachment—Restitution, Code of Civil Pboceduhe, § 1393.
    The court referred to in - section 1393 of the Code of Civil Procedure, which provides for restitution when a judgment is set aside, is the court which sets aside the judgment; and when a motion is made at special term to set aside an attachment, and denied, on which judgment was entered against the defendant and execution satisfied, but on appeal the general term reversed the order denying the motion, and that decision is affirmed, the motion fpr restitution was properly made at the general term.
    "3. Same—Delay.
    There is no provision or rule of law which required this motion to be made sooner, or its denial on account’of delay.
    3. Same—Motion by attorney.
    It is not error that the motion was made by an attorney appearing for the defendant, and in the notice asking to have restitution made to the receiver.
    4. Pending action.
    The pendency of an action brought to recover the same money for which the restitution is asked, does not protect the defendant from making a motion for restitution, nor the court from, in its discretion, granting it on condition of the discontinuance of the action and the payment of the costs therein.
    Appeal from judgment general term supreme court, first department, reversing orders vacating attachment.
    
      Abram Wakeman, for appellant, Market National Bank of New York.
    
      Elihu Root, for respondent, Pacific National Bank of Boston.
   Earl, J.

The plaintiff attached the property of the defendant. A motion was made at special term to set aside the attachment, which was denied. Judgment having been entered against the defendant, execution thereon was issued, and the plaintiff collected and received thereon, out of the attached property, upwards of $26,000. The defendant appealed to the general term from the order of the special term refusing to vacate the attachment, and there the order of the special term was reversed, and the attachment, judgment and levy under the attachment were vacated and set aside. The plaintiff appealed from the order of the general term to this court, and here that order was affirmed, and the case remitted to the supreme court, and an order was entered at the special term on the first day of December, 1883, making the order of this court the order of the supreme court. In January, 1885, the defendant moved at the general term of the supreme court for restitution of the money collected by the plaintiff of it, and the motion was granted, and the plaintiff then brought this appeal to this court.

Section 1292 of the Code provides:

“ When a judgment is set aside for any cause upon motion, the court may direct and enforce restitution in like manner, with like effect, and subject to the same conditions as when a judgment is reversed upon appeal.”

The court meant in this section is the court which set aside the judgment, and hence this motion for restitution was properly made at the general term; and the section is authority for the restitution ordered in this case.

There is no provision or rule of law which required this motion to be made sooner, .or its denial on account of the delay. The court could, in the exercise of its discretion, have denied the motion on account of the delay, and left the defendant to its action to recover back the money. But we do not discover that the plaintiff suffered any harm by the delay, or that the court abused its discretion, and we have no power, therefore, to review it.

The objection that the receiver of the defendant could not make the motion is misconceived. The motion was made by an attorney appearing for the defendant, and in the notice of motion he asked to have restitution made by payment to the receiver; so that the motion is really made on behalf of both the defendant and its receiver, and the order of the general term awarded restitution to the defendant, but that the payment in restitution should be made to the receiver. This is the form of order asked for by defendant’s attorney, and the plaintiff has no occasion to find fault with it in that respect.

It appears that the receiver of the defendant had commenced an action in the circuit court of the United States to recover the same money against the National Park Bank, from whose possession the plaintiff took it by the attachment and judgment in its favor, and also another action in the same court against the plaintiff to recover the same money. The pendency of those actions did not preclude the defendant from making this motion, and it was within the discretion of the court to determine whether, notwithstanding their pendency, this motion should be entertained and granted; and when it granted it on condition that those 'actions should be discontinued and the taxable costs therein paid by the receiver, it sufficiently protected the rights of the plaintiff. We see nothing in the terms upon which the order was granted of which the plaintiff can justly complain. We are therefore of opinion that the opinion that the order should be affirmed, with costs.

All concur.  