Following the reversal of the order granting a writ of assistance as to certain articles (204 App. Div. 552) the defendants have moved for an order of restitution. Restitution rests in the discretion of the court. (Civ. Prac. Act, §§ 529, 554, 587, 1444; Merriam v. Wood & Parker Lithographing Co., 155 N. Y. 136; Market Nat. *425Bank v. Pacific Nat. Bank, 102 id. 464; Marvin v. Brewster Iron Mining Co., 56 id. 671.)
In view of the sale of some of the articles involved and their attachment to the freehold, justice will be best served by denying the motion in our discretion. This in nowise precludes the defendants from asserting their rights in a new action. (Haebler v. Myers, 132 N. Y. 363.) .
The plaintiff has moved to amend our former order to provide for a reference to determine whether the articles were a part of the mortgaged premises and has called our attention to the case of Lombard v. Atwater (46 Iowa, 501). We are of the opinion in this case, however, that the parties not having originally included within their pleadings any allegation that the articles in question were or were not part of the real estate, the question whether they were covered by the mortgage should now be determined in a new action, and that the motion for a modification to provide for a reference should be denied.
All concur.
Motion by defendants for an order of restitution, and motion by plaintiff to amend order of reversal entered March 7, 1923, so as to provide for a reference to determine whether the articles were a part of the mortgaged premises, denied, without costs.