Varrichione v. Grimmett

28 Misc. 2d 598, 217 N.Y.S.2d 404, 1961 N.Y. Misc. LEXIS 2781

Opinion

Abraham N. Geller, J.

In this contract action the nonresident defendant moves to vacate the warrant of attachment. Plaintiff obtained judgment and an appeal therefrom is pending, a bond to stay execution having been furnished. A motion made earlier by defendant to vacate the warrant was denied.

Defendant contends that the appeal bond is adequate security for the plaintiffs and that they are therefore, no longer entitled to the attachment. Thus, defendant actually seeks discharge of the attachment pursuant to sections 952 and 953 of the Civil Practice Act arid return of his property rather than vacation of the warrant, whose validity was earlier sustained. This being so, defendant must give a discharge bond pursuant to section 953 of the Civil Practice Act in addition to the appeal bond already given. (Hadjopoulos v. Manousso, 197 App. Div. 56.) In the event of reversal and direction of a new trial, the appeal bond terminates. Therefore, plaintiffs are entitled to the attachment or a bond in lieu thereof to secure payment of any judgment thereafter recovered.

The motion is denied, but an order may be settled providing for discharge of the attachment and the posting of a discharge bond, poundage to be paid by the moving defendant.