Opinion
June 29, 1916.
Adolphus D. Pape [ Julian V. Carabba with him on the brief], for the appellant.
J. Tobias Goldberg, for the respondent.
A wife sued her husband for a separation. She procured an order of arrest granted by the court. The order was executed. The defendant deposited with the sheriff the sum specified in the order and was thereupon discharged. The sheriff paid the deposit into court. Final judgment for the defendant was rendered. The defendant applied for an order refunding the deposit. His application was denied. The Code provision is plain: "If the final judgment is for the defendant, * * * the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative." (Code Civ. Proc. § 585.) The plaintiff's attorney deposes she instructed him to appeal from the judgment. The circumstance that she did appeal would be immaterial. The final judgment contemplated by the Code section cited has been rendered. (See Wilson v. Ryder, 11 N.Y. St. Repr. 279.)
The order should be reversed, and the application granted.
JENKS, P.J., THOMAS, CARR and PUTNAM, JJ., concurred.
Order reversed, without costs, and application granted.