
    Hiram Wright, Admr., etc., of Charles N. S. Rowland, deceased, Appellant, v. Mary A. Rowland, Respondent.
    Practice. Appealable order. Code of Procedure. Attachment. The case arises as follows: Action for the recovery of money, gay $9,000; attachments issued and property seized to the amount of, say $9,000. Judgment for plaintiff for, say $S00, from which plaintiff appeals to the General Term. While this appeal is still pending and undetermined, the defendant, with an offer to pay the judgment entered against her, moved, at Special Term, for a discharge of the attachment, which was . denied, but an order discharging such attachment was granted, on appeal of defendant, by the General Term. From this order of discharge, the plaintiff'appeals to this court. Held, —
    1. That the order of the General Term, discharging the attachment, while an appeal from the judgment therein was pending, was an appealable order, and subject to review in this court.
    
      2. Where property has been duly attached, it is held to meet the ultimate recovery in the action, and the attachment cannot be discharged upon an offer to pay the amount of the judgment first found, from which judgment the plaintiff has duly appealed.
   Woodruff, J.

This action is brought for the recovery of upward óf nine thousand dollars and interest thereon. Attachments were issued" under which property of the value of nine thousand dollars or thereabouts has been seized and held by the sheriff to answer the judgment in the action.

Issue being joined, the action was referred and tried, and upon the decision of the referee judgment for the plaintiff was entered for $528.72 including costs, on the 7th day of February, 1868.

The plaintiff dissatisfied with the amount of the recovery, and questioning the grounds upon which the referee disallowed, to so great an extent, his claims in the action, appealed from the judgment to the General Term of the Supreme Court, where his appeal is now pending. "

After the taking of such appeal, the defendant, upon these facts and an offer to pay the judgment entered for $528.72, made a motion in the Supreme Court of the first district,, at Special Term, for a discharge of the attachment.

The motion was there denied, and the defendant appealed to the General Term, where the order denying such motion was reversed, and it was ordered that on the payment of the said judgment for $52.8.72 with the interest, and $10 cost of appeal, within five days, the attachment be, and the order declares that it “ is hereby discharged.”

From this order of the General Term the plaintiff appeals to this court.

1. It is objected that the order is not appealable and cannot, therefore, be reviewed in this court.

There is no ground for this objection. This court has jurisdiction “ to review on appeal every actual determination" made at a General Term by the Supreme Court,” “in a final order affecting a substantial right made * * upon a summary application in an action after judgment.” (Code, § 11, subd. 3.)

The order appealed from is such a determination'; it was made after judgment had been rendered, on summary application by motion. It was, therefore, in no wise included in the judgment, and no appeal from any judgment in the action could bring it under review.

It affected a substantial right. A right, because if the property seized on the attachment is by law to be held to meet any ultimate recovery by the plaintiff in the action in which the attachment was issued, then he has a legal right to have it continued in force; and, on the other hand, if such property can only be held for the payment of the judgment which has been entered, then the defendant had a legal right to have it discharged upon payment of that judgment. Where a case for an attachment as provided by statute exists, there is no discretion to be exercised on the question of the allowance of the attachment or of its continuance for the purposes for which it legally operates.

2. The question therefore properly before us is, Is property which has been duly attached, held to meet the ultimate recovery in this action, or only to meet the judgment which may be first rendered upon the issues made up between the parties ?

The language of the statute seems to me quite explicit. It says that the plaintiff, in the cases enumerated, may have the property of the defendant attached as a security for the satisfaction of such judgment as the plaintiff ma/y recover.” (Code, § 227.) The sheriff is required to “ keep .the property seized by him * * to answer any judgment which ma/y be obtained in such action.” (§ 232.)

When the defendant appears and applies for the discharge of the attachment upon giving security as a substitute there-for, he must give an undertaking with at least two sureties to the effect “ that such sureties will, on demand, pay to the plaintiff the amount of judgment that ma/y be recovered against the defendant in the action.” (§ 241.)

If -1 were to seek for language in which to describe the plaintiff’s recovery against the defendant, I could find none more explicit or comprehensive than “ any judgment which may be obtained in such action.”

The object of the statute is, that in cases in which the plaintiff is entitled to this provisional remedy, he may have "security for the realization of whatever may be the fruits of of the litigation, and the terms of the statute appropriately express this object.

If a new trial be granted the action is still pending, and a judgment will thereafter be pronounced in-the action, it may be in favor of the plaintiff. Surely that judgment is included in the expression, “ any judgment which may be obtained in such action.”

True, the judgment which has been rendered in the action is, in a sense, “ a final determination of the rights of the parties to the actionit is so defined in the Code (§ 245); but the argument for the respondent gains no strength from the designation, “ final judgment.” If the sections relating to the attachment, had used the.words “to answer the ‘ final’ judgment,” the question would still be open whether “ final” was not used there to describe any ultimate recovery. But ■ the respondent here has not even the possible suggestions which in that case could be urged. That is not the language of the sections; “ any judgment ” includes a judgment recovered in the action after a new trial, or after any number of new trials, as precisely and as completely as it does the judgment which may be rendered on a first trial.

The judgment which has been rendered is, in the plain terms of the Code, a final judgment, i. e., it purports to finally determine the rights of the parties to the action, and so long as it remains unreversed and in full force, it does determine those rights. But it is the subject of appeal and review, and it may be wholly set aside and held for nought; if it be reversed the action will then be pending and undetermined, and the plaintiff will be at liberty to proceed to obtain judgment in the action. That judgment which was final so long as it was in full force, and which operated temporarily as a determination of the rights of the parties, was not final in any other sense. It seems to me, however, that to multiply words on this point is unnecessary.

It is, however, proper to notice the suggestion, that the court will not presume the judgment appealed from to be erroneous, but the contrary; and that the motion was properly granted on the presumption that the judgment is right, and that the plaintiff will not recover any better judgment.

The answer is obvious. The court on the motion are not called upon to indulge any presumption—certainly not a presumption that, because the judgment has been appealed from, it is erroneous. But they are called upon to notice that the same statute which authorizes an attachment, also authorizes an appeal from the judgment and a review thereof to test its correctness, and has given to the plaintiff a right to such review, in order to inquire whether it be erroneous or not, and the same statute contemplates the possibility of a reversal, and provides for ulterior proceedings in the action, in the event of such reversal leading to a new trial and judgment.

When, therefore, that same statute, with these provisions in full view, declares that the property attached shall be kept to answer any judgment which may be obtained, there is little room for doubt as to the meaning.

The principle of the decision of this court in Robinson v. Plympton (25 N. Y. 485) is in direct opposition to the decision made in the court below, and the questions decided in the cases cited there are in very close identity with that now before us.

The order appealed from should be reversed.

Order reversed.  