The plaintiff obtained an attachment which was set aside. On appeal to this court the order setting aside the attáchment was reversed and it was thus restored. After the vacating of the attachment the defendant removed the property levied upon out of the jurisdiction of the sheriff.
I agree that this property should be restored, but I do not think the Special Term had any power to entertain a motion for- its restoration. The motion should have been made in this court, where the reversal was had.
The original order setting aside the attachment was a final order so far as the rights under the attachment were concerned. Section 1323 of the Code of Civil Procedure provides: “ When a final judgment or order is reversed or modified upon appeal, the appellate court, or the general term of the same court, as the case may be, may make .or compel restitution of property or of a right lost by means of the erroneous judgment or order, but not so as to affect the title of a -purchaser in'good faith and for value.”
In Hayes v. Nourse (25 Abb. N. C. 95) the power of a Special Term to make an order for restitution on reversal was discussed, and it was held that the Special Term had no power, but that the same was *30vested either in the General Term of the Court, of Common Pleas, through which the judgment had passed,, or in the Court of Appeals; where the judgment was reversed.
The proper interpretation of section 1323 of the Code was discussed in Carlson v. Winterson (146 N. Y. 345), and in his opinion Haight,. J., in the expressed hope that, there might be no doubt- in the future as to the court in which-.a motion for restitution . should be made, took pains to state the proper .practice to be pursued. He says: “It follows that the motion may be .made in-the court that reverses-the judgment,, or.it maybe made, at the General Term of the court to which the case has been remitted and is pending, if that court has a General Term. If not, the motion must be made in the court that reversed the. judgment.”
Of course, what is said respecting a judgment applies to the order mentioned inthe same section, and the rule would seem to be very plain.
Mossein v. Empire State Surety Co. (117 App. Div. 820) is not to the contrary, nor an. authority, upon the.question involved. " In that case the question discussed was as to the power of the Special Term to direct .-restoration of money-which it had previously ordered paid into court. ' Of course the Special Term'had power to do that. Ho question of the powerof the Special Term to order restoration-after reversal was involved and, nothing was said on that subject.
For these reasons I think the Special Term was right in denying the -restoration asked for arid that its. order, should be affirmed, with leave to the plaintiff to move in -this court. - ..
. Order reversed, with ten' dollars costs' and disbursements, and motion granted, with ten dollars costs. ■