If the motion had been denied at Special Term I should vote to affirm under the rule referred to in the prevailing opinion; but since the question has been passed upon at Special Term and decided correctly, as I think, the order may as well stand.
I am of the opinion that the Municipal Court lost jurisdic*64tion of the action in which the undertaking was given, and that thereupon the obligation thereon to return the property became effective.
It seems clear to me that the new matter pleaded and stricken out does not constitute a defense.
I, therefore, vote for affirmance.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.