The National Shoe and Leather Bank of the City of New York, Appellant, v. The Mechanics' National Bank of Newark, New Jersey, Respondent; The Corn Exchange Bank, Appellant, v. The Same, Respondent; The West Side Bank, Appellant, v. The Same, Respondent

The National Shoe and Leather Bank of the City of New York, Appellant, v. The Mechanics’ National Bank of Newark, New Jersey, Respondent. The Corn Exchange Bank, Appellant, v. The Same, Respondent. The West Side Bank, Appellant, v. The Same, Respondent. An order vacating an attachment issued before judgment is not reviewable here- A receiver of an insolvent National bank, appointed after the issuing of an attachment against it, may, under the Code of Civil Procedure (§ 682), move to vacate the attachment without being made a party to the action. (Argued June 13, 1882; decided June 20, 1882.) Appeals from orders of the General Term of the Supreme Court, in the first judicial department, made April 10, 1882, which affirmed orders of Special Term vacating attachments issued before judgment in the actions above entitled. The applications to vacate the attachments were made by Frederick Frelinghuysen, who was appointed receiver of the defendant, after the issuing and levy of the attachments. George G. La/y, Jr., for appellants. The receiver, not having intervened in the action, has no status in court to make this motion. (Allen v. Scandinavian Nat. Bk., 46 How. Pr. 71; Tracy v. First Nat. Bk. of Selma, 37 N. Y. 523 ; In re Griswold, 13 Barb. 412; Ketcham v. Ketcham, 1 Abb. [N. S.] 157; Isham v. Ketchum, 46 Barb. 43; Macher v. Bancroft, 15 Abb. Pr. 245.) Aaron Pennington Whitehead for respondent. The receiver is entitled to make this motion. (Code of Civil Procedure, § 682; Steuben County Bk. v. Alberger, 78 N. Y. 252; Woodmansee v. Rogers, 20 Hun, 285; Throop’s note to § 682.) [MAJORITY — Dahfoeth, J.] Dahfoeth, J. The orders appealed from affirmed orders of the Special Term vacating attachments issued before judgment against the property of the defendant. They relate to the mode of procedure, do not affect the merits of the action, and to some extent involve the exercise of discretion. It has therefore been the frequent practice of this court to dismiss an appeal in such cases (Sartwell v. Field, 68 N. Y. 341; Wallace v. Castle, id. 370), and that practice, for reasons stated in Van Slyke v. Hyatt (46 N. Y. 259); Anonymous (59 id. 313); Martin v. Windsor Hotel Co. (70 id. 101), must be followed in this instance. The motions to vacate were by Frelinghuysen, who had been appointed receiver of defendant. It is objected by the appellants that as the receiver has not been made a party to the action, he had no standing in court or right to be heard as to the attachments, and cases are cited to that effect (Tracy v. First Nat. Bank of Selma, 37 N. Y. 523 ; Allen v. Scandinavian Nat. Bank, 46 How. Pr. 71; In re Griswold, 13 Barb. 412; Ketchum v. Ketchum, 1 Abb. [N. S.] 157; Isham v. Ketchum, 46 Barb. 43 ; Thacher v. Bancroft, 15 Abb. Pr. 243), but they all turned upon the provision of the Code of Procedure (§ 241), which gave the right to move to discharge the attachment, to a defendant only. This right is now extended (New Code, § 682) to any person who, after the attachment issued, acquired an interest in, or lien upon, the property attached. He may move by virtue of that relation, and need not be a party to the suit. (Steuben Co. Bank v. Alberger, 78 N. Y. 252.) The receiver comes within the terms of that section (U. S. R. S., § 5234; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383; Nat. Bank v. Colby, 21 id. 609) and is entitled to be heard. The appeal should be dismissed, with costs. All concur. Appeal dismissed.