The motion must be denied. It is based upon the ground that the respondent has no subsisting interest in the demand sought to be recovered in the* action: that the entire interest therein has become vested in attaching creditors, in whose behalf it is the duty of the sheriff to collect the money ; that the creditor who employed the attorney who prosecuted the suit to judgment, in the superior court, and who is the attorney of the respondents in this court, has no interest in the demand, as it is claimed that his attachment was never served.
From the papers it appears that there have been conflicting claims to any money that may be recovered in the suit, made by persons not parties to the record; and that these claims have been the subject of litigation between such parties, in an action commenced in the supreme court by the party in whose behalf this motion is made, against the other claimants, and perhaps others ; that judgment has been rendered in such action, declaring the moving party entitled to the fund, and restraining the other parties from interfering therewith; and that an appeal has been taken from such judgment, to the general term of the supreme court, which appeal is still pending.
This court cannot, for the purpose of this motion, in the exercise of its discretion, regard this judgment *90as conclusive, and finally determine the rights of the parties thereon ; as such judgment may be reversed. The papers contain no evidence tending to show that the attorney having charge of the case as attorney for the respondent in this court will not diligently and faithfully protect the interests of all interested in the fund, so far as the same are to be affected by any action óf this court. Were it otherwise, this court would provide for such protection by permitting other counsel to appear for that purpose. After the decision of the court upon the appeal from the judgment, the case will be remitted to the superior court,, where such proceedings may be had as shall be found necessary to determine the rights of all parties to the fund. It will be time enough for this court to pass upon any question raised in relation thereto, when brought here for revision upon appeal.
Motion denied.