Neely v. Munnich , 58 N.Y.S. 316 ( 1899 )

MacLean, J.

Upon the hearing of a motion to vacate the attachment issued in the above-entitled action, the justice ordered a reference to take proofs and report thereon. Before any hearing was had on such reference, the defendant answered and made an offer of judgment, which was accepted, and thereupon final judgment was rendered in the action in favor of the plaintiff, which judgment was fully paid. This annulled the attachment (Code Giv. Pro., § 3343, subd. 12), and it thereupon Lócame "the duty-of the sheriff to deliver over mpon demand to the defendant^ or to the person entitled thereto, all the attached personal• property re-mainipg in his hands (§ 709), and to "file in the clerF.S' office the. "warrant with the return of his proceedings- -thereon (§ 712).' Upoh the annulment of the warrant, the motion to vacate it-must needs fail,, and together with it.the incidental reference,, which was properly vacated. The defendant claims 'tó "he aggrieved, because the reference ceasing, he cannot, by a report in his favor, he relieved from the imputations cast upon him in the affidavits upon which the ■ attachment was granted. Whatever might be the outcome in his behalf of the reference, the defendant cannot complain, because he brought about the situation voluntarily by paying the judgment, to save further costs. The order appealed from should he affirmed, with costs to the respondent..

Ebeedman, P. J., and Leventbitt, J., concur.

Order, affirmed, with costs to the respondent.