
    UNITED STATES v. NEELY.
    (Circuit Court, S. D. New York.
    February 21, 1907.)
    Attachment — Application to DISCHARGE — Substitution oe Bond.
    Code Civ. Proc. N. Y. § 688, which provides for the discharge of an attachment upon the giving by the defendant of a bond conditioned for the payment of any judgment that may be recovered, does not apply where the attached property is current money.
    See 126 Fed. 221; 146 Fed. 763, 764.
    Wm. P. Maloney, for the motion.
    Edward K. Jones, opposed.
   LACOMBE, Circuit Judge.

This is an application, under section 688 of the New York Code, directing the payment to defendant of $20,000 deposited with the clerk of this court as bail in certain criminal proceedings, upon defendant giving a bond of a surety company to the extent of such moneys. After the deposit was made the plaintiff in this cause — a civil action to recover money — took out an attachment and levied the same upon the deposit. There is some question as to whether or not the criminal proceedings have terminated; but it is not necessary to decide that point. As the situation now is, the plaintiff, if it recover judgment in the civil action (the criminal proceedings being discontinued), can by means of an execution collect the amount of such judgment summarily (so far as may be) from the cash now in custody of the court. If the bond of a surety company be substituted for the money, the plaintiff, if it recovers judgment against the defendant, may then bring a new action against the surety company. This would be a most extraordinary procedure. I am of the opinion that section 688 does not apply to current money.

The motion is denied.  