The defendant by his answer admits that, after deducting all his alleged counter-claims, there remains a balance due to the plaintiff, and such balance amounts to $2,675 34. To this part of the claim no defence is set up, and the plaintiff now moves that the defendant be ordered to pay over such moneys, and that so much of the money now deposited in court be paid over therefore. For the reasons why in such cases the motion should be granted, I refer to the opinion in the case of Meyers v. Trimble,* decided this day'at special term. It is objected by the defendant, in addition to other objections therein referred to, that in this case a difference of interest will accrue in favor of the defendant on his counterclaim in consequence of the money being deposited in the Trust Company, under an order of the court, at a low rate of interest. The objection is unavailing. The money in the Trust Company was not placed there at the request of the plaintiff, but of the defendants, and, if the interest is. small, the plaintiff only receives at that rate on this order. The defendant had no right to object to whát was done' at his request, and if it were otherwise, the defendant has security in the bond given on the injunction sufficient to protect him against loss on the counter-claim.
The motion must be granted.
From this decision the defendant appealed.
*225II. In the present case one of the sureties put in by plaintiff on the arrest and injunction, is insolvent, the other is in bad credit, and the plaintiff himself ’is not a householder. Certainly it should be made a condition of granting the order that plaintiff put in fresh security.
II. F. ClarJc, for respondent. Woodruef, J.The complaint herein is filed to recover from the defendant a large sum of money alleged to have come to the defendant’s hands as agent for the plaintiff; and an injunction having been granted to restrain the disposition of the specific fund in the defendant’s hands or in the hands of his banker, the defendant himself moved for and obtained an order, in pursuance of which the money held under injunction was brought into court and deposited in the New York Life and Trust Company to abide the further order of the court. Upon the coming-in of the answer, the plaintiff applied at special term before the first judge and obtained an order upon motion, directing the payment to the plaintiff of the sum of $2675,34 out of the money so brought into court. This motion was founded upon the provisions of § 244 (Subdiv. 5) of the Code of Procedure, and from the order so made the defendant appeals.
I concur with the first judge in the propriety of making the order upon the plain and unqualified admissions in the defendant’s answer. The plaintiff claims the proceeds of a sale of the ship, made in China. The defendant sets up a sale of the ship at San Francisco for a less sum, admite that the plaintiff is entitled to the proceeds of that sale, and denies that the plaintiff has any interest in the sale in' China, (which he avers was made for the account of the San Francisco purchaser). And the defendant annexes to his answer a statement of his account with the plaintiff, crediting to him the proceeds of the sale at San Francisco, and charging him with all the remittances and all his claims for commission and for matters of set-off, and by his sworn answer declares it to be a “ fall, accu*226rate and true account,” &c., and that account in very terms states that the “ balance due W. H. Merritt (the plaintiff) is $2675,34”—and again in his answer he denies that any greater sum than $2675,34 is due to the plaintiff.
Mow, however much the parties differ in relation to the "other matters stated in the complaint and answer respectively, it is not disputed in any form that at least so much as $2675,34 of the moneys now in court do belong to the plaintiff. To this extent the defendant’s answer, read with the schedule annexed, is unqualified.
This appears to me to be the precise case contemplated by the provisions of the Code above referred to, viz.: “ when the answer of the defendant admits part of the plaintiff’s claim to be just, the court on motion may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy.”
But the counsel for the appellant insists that the defendant has offered and tendered to pay this sum heretofore, and that therefore the court ought not to make the order for the payment, but require the plaintiff to accept the offer as in full for his claim if he takes the money at all. It appears to me that nothing could be more inequitable; it is in effect saying to him, “ abandon your claim, take just what the defendant admits to be due, admit all that the defendant alleges as a defence, and be content; if you will not do this you shall not take the money which is your own, to which the defendant admits he has no title, and which is in court awaiting the order which may be made, and which (whatever may be the result of the matter in dispute) must be decreed to belong to you.”
Where a defendant is insolvent, and either comes in, by the offer to allow judgment to be taken against him for a sum named under § 385 of the Code, or by his answer makes such an offer, the court should and would be very careful not to substitute process of attachment for contempt in the pjace of a judgment and ordinary execution, since the former might involve imprisonment of the body in many cases where such imprisonment for a mere debt was probably not contemplated by the legislature. But where, as in the present case, the defendant not only admits this part of the plaintiff’s claim to be *227just, but actually offers to pay it if the plaintiff will abandon his other claims, and especially where the money is itself under the control of the court, no such reason exists, and there seems to me to be no reason for withholding -the money from the plaintiff.
In giving power to the court (when a defendant admits a sum to be due) to make a peremptatory order that the defend.ant pay it and to enforce the order by attachment, the legisla- • turc did not intend to introduce imprisonment for debt in cases where it is not allowed upon other grounds, except when the .refusal to pay was contumacious, and not the result of inability. If a defendant has the money and only refuses because he is •unwilling, it is in all respects proper that he should be compelled to pay and be imprisoned until he does so.
The counsel for the appellant further insists that the order .•should at all events have only been granted upon terms—that it appears by the affidavits read on the motion that one of the sureties to the undertakings given on granting the order of arrest and the injunction herein, has become insolvent, and the plaintiff ought to have been required to give a further undertaking. It appears to me that such a requirement would not .have been unreasonable, but I do not think the order should be reversed upon that ground.
Indeed I doubt very much the propriety of reviewing upon .appeal the discretion exercised by the judge at special term. It is true that an order granting or refusing a provisional .remedy may be appealed from, and hence this appeal is properly brought, and under the same provision of the Code an appeal may be brought from an order directing an arrest. But •on an appeal in the latter case the court would not, I think, review the discretion exercised by the judge in determining whether such order shall issue upon an undertaking “ with .sureties” or an undertaking “ without sureties,” either being proper as the judge granting the order may direct.
The same remarks are applicable to an order granting an injunction either on an undertaking by the plaintiff with sureties or without sureties, as the court or judge may direct. The ■question whether or not in such case the injunction was proper, is undoubtedly the subject of review, but I very much *228doubt the propriety of considering those matters of discretion,, which relate to the terms or conditions imposed. So in regard, to the granting or refusing of costs or requiring a party to give time or other indulgence as a condition of granting an order,, it seems to me that the action of the special term should be. regarded as final when no right of the party nor any rule of law is violated.
Again, in the present case, the court, on granting the injunction, might have dispensed with sureties altogether, or might have been satisfied with the undertaking on the part of the plaintiff with one surety. The defendant has now the liability of the plaintiff himself and of one solvent surety, and this will-ordinarily prove ample to protect the defendant.
Besides, the only damages which the defendant is liable to> sustain by the litigation, against which he could ask indemnity, is a possible loss of interest on the fund in court at the rate of two per cent per annum, and his costs of suit. There, is nopretence that the plaintiff is not solvent and fully able to meet any liability to indemnify the defendant in these particulars if the latter should recover judgment. There is, moreover, at, least one solvent surety to the plaintiff’s undertaking.
I am not, therefore, disposed to interfere with the discretion exercised at special term in not imposing upon the plaintiff the duty of giving further security as a condition of granting the order, and on the merits I think the order was, eminently just and proper. It should therefore be affirmed.
Ante, p. 219.