By the Court—
Gilbert, J.It is testified by the attorney of Messrs. Wilmerdings & Mount, and not denied by Mr. Fowler, that when the latter obtained the moneys in controversy, he knew the fact that said moneys were claimed by Mr. Fice, and that an action brought by him against Wilmerdings & Mount to recover the same was then pending. There is nothing in the papers to show that Mr. Fowler had any reason to question the title of Mr. Fice to the moneys. On the contrary, it is a fact of some significance, that it is not made to appear that Lowenstein, the judgment debtor, on his examination, stated that the moneys belonged to him. That examination is not before us, and all that appears respecting the *170contents of it is set forth in Mr. Fowler’s affidavit, dated October 23d, 1871. His statement there is, “ that on the examination of the judgment debtor he stated and swore that the relators (Messrs. W. & M.) had owed him the money in question.” The title of Mr. Rice to the moneys has been judicially established.
Mr. Fowlér obtained the moneys upon an ex parte deposition of Thomas A. Wilmerding, that there was a balance of $936.86 remaining with his firm to the credit of the judgment debtor. Mr. Wilmerding was not interrogated respecting the claim of Rice, or whether such balance was in point of fact the property of the judgment debtor. Nor did Mr. Fowler state to the justice who made the order directing Wilmerdings & Mount to pay the money to him, the fact that the judgment debtor had assigned said moneys to Rice, or anything concerning Rice’s claim thereto. Nothing is shown to justify or excuse such a suppression of material facts. As the case is now presented, it can be regarded in no other aspect than that of an imposition on the justice who made the order. In such a case there can be no question of the power and duty of the court, by appropriate means to compel a restitution of the moneys to the persons thus illegally deprived of them. (State v. Phenix Bank, 33 N. Y., 25, and cases cited.) And when the party proceeded against is an attorney, the remedy by attachment is the proper one.
No embarrassment arises from the statement of Mr. Fowler, that he has paid over the moneys to the plaintiffs. Nor is it necessary to pass upon the legal effect of such a fact, if it exists, for Mr. Fowler is one of the plaintiffs, and the statement would be literally true if he retained the moneys and charged himself therewith in account with liis firm. It appears that one Bamberger is the person entitled to receive the moneys from Fowler, and there is no pretence that they have been paid to him.
*171The appeal from the order made by J ustice Ingraham was waived by the motion under review.
Upon the whole ease, therefore, we think the order appealed from should be affirmed, with costs.
Order affirmed.