p. 9An answer admitting a certain sum to be due by defendant, but alleging as a reason for non-payment that a third party has attached the indebtedness in an action against plaintiff, that said action “has since been pending,” and that the defendant has never been released from its obligations by reason of such levy, is insufficient, and does not constitute a bar to the recovery of the amount, on motion, under section 511, Code of Civil Procedure. The'answer should state that the said attachment and levy are still in force.
An order denying such a motion sufficiently involves the merits of the action and affects a substantial right, to be the subject of review by the general term.
Before Curtis, Ch. J., and Vast Vorst, J.Decided February 2, 1880.Appeal from an order of the special term of this court made in December, 1879, denying the plaintiffs’ motion, that they have leave to enter judgment for $772.58 of their alleged claim, and that the action be severed, and they be at liberty to discontinue or proceed with the action as to the residue, under section 511 of the Code of Civil Procedure. Or that the del fendant be directed to pay that sum into court, pursuant to section 717 of Code, on the ground that cause therefor is shown by the moving papers.
Stephen H. Olin, for appellants.
Francis C. Reed, for respondent.
The answer admits that $772.58 of the claim in suit is due and owing; but states as a reason for not paying it to the plaintiffs, that a third party attached it, November 29, 1875, in a suit against the plaintiffs, and avers on information and belief, that such suit “ has since been pending.” The answer also further alleges that the defendant has never been released from its obligations by reason of such
p. 10levy. The answer fails to aver that this attachment is still in force. The allegation that the defendant has never been released from its obligations by reason of such levy, is not equivalent- to an allegation that the levy is still in force. It may well be that no release of the levy has been executed, nor is any required to discharge the levy. The plaintiffs show that the attachment has been vacated by an order of the court, and this is not denied, or in any way controverted by the defendant. This defense is not of a character to constitute a bar to the plaintiffs’ recovery of the $772.58 admitted by the answer to be due and payable to the plaintiff, except for the attachment.
The defendant claims that the appeal should be dismissed, on the ground that the order appealed from, denying plaintiffs’ motion, is not appealable. The order made at special term sufficiently involves the merits of the action, and affects a substantial right, to warrant its revival at the general term.
The order appealed from should be reversed upon the pleadings - alone, with costs, and an order entered directing judgment for the plaintiff, in the sum of $772.58 ; and in plaintiffs’ election, for a continuance of the action, as to the other matters contained in the pleadings, pursuant to section 511 of the Code of Civil Procedure.
Yah Yoest, J., concurred.