Marsh v. West, Bradley & Cary Manufacturing Co.

14 Jones & S. 8

Opinion

By the Court.—Curtis,. Ch. J.

The answer admits that $772.58 of the claim in suit is due and owing; but states as a reason for not paying it to the plaintiffs, that a third party attached it, November 29, 1875, in a suit against the plaintiffs, and avers on information and belief, that such suit “ has since been pending.” The answer also further alleges that the defendant has never been released from its obligations by reason of such levy. The answer fails to aver that this attachment is still in force. The allegation that the defendant has never been released from its obligations by reason of such levy, is not equivalent- to an allegation that the levy is still in force. It may well be that no release of the levy has been executed, nor is any required to discharge the levy. The plaintiffs show that the attachment has been vacated by an order of the court, and this is not denied, or in any way controverted by the defendant. This defense is not of a character to constitute a bar to the plaintiffs’ recovery of the $772.58 admitted by the answer to be due and payable to the plaintiff, except for the attachment.

The defendant claims that the appeal should be dismissed, on the ground that the order appealed from, denying plaintiffs’ motion, is not appealable. The order made at special term sufficiently involves the merits of the action, and affects a substantial right, to warrant its revival at the general term.

The order appealed from should be reversed upon the pleadings - alone, with costs, and an order entered directing judgment for the plaintiff, in the sum of $772.58 ; and in plaintiffs’ election, for a continuance of the action, as to the other matters contained in the pleadings, pursuant to section 511 of the Code of Civil Procedure.

Yah Yoest, J., concurred.