The action was brought to recover, .the sum of-fifty dollars deposited with the sheriff by the plaintiff’s .assignor in lieu of bail-, on an attachment granted against one Robert Cuddy in proceedings supplementary to execution. The receipt ran in this form:
“ Received from Frederick Hunecke (plaintiff’s assignor) the sum of Fifty (50) Dollars as deposit of bail set in- the above case, as called for on an order of attachment against judgment debtor,” etc.; signed, “ Frank D. Creamer, Sheriff.” The defendant paid this money over to the plaintiff in the supplementary proceedings under an order made therein by the county judge. The order did not assume to apply the money in satisfaction of any fine imposed on the judgment debtor for contempt, but as being .the property of *212the judgment debtor, and hence, applicable to the payment of his debt. ' .
That either in civil or criminal proceedings money deposited as bail may be applied to the satisfaction of obligations to secure which the defendant is held to. hail, regardless, of the rights of third parties to the money, seems settled by authority. (Salter v. Weiner, 6 Abb. Pr. 191; Hermann v. Aaronson, 3 Abb. [N. S.] 391; People ex rel. Gilbert v. Laidlaw, 102 N. Y. 588.) Therefore, had this money been taken to pay a tine imposed on. the judgment' debtor for his contempt, we assume that the claim of the plaintiff’sassign or Could not have been permitted to defeat such application. But the order under which the money was paid to the sheriff by the judgment creditor was not of this character. It assumed to treat the fund on deposit with the sheriff as the money of the defendant in. the. supplementary proceedings. The receipt given by the sheriff shows that the money was: not the property of that defendant, but of the plaintiff’s assignor, and the order is not a protection for such payment. But' the record before us fails to-show, any order terminating the attachment proceedings so as to release the money, deposited with 'the sheriff. On this ground the learned trial court correctly held that the action' could not be maintained. We think, however, that it was erroneous to direct a verdict for the defendant; the proper course was to dismiss the complaint, but not on the merits.
The judgment appealed from should be modified so that the dismissal of the complaint shall not be on the merits, and as thus modified affirmed, without costs of the appeal to either party.
All concurred.
Judgment modified by striking therefrom the words “ on the merits,” and ,as: modified affirmed, without costs nf this appeal ‘to either party. ' . '