¶1The claim for a preference was made under general rule 36, on the ground that the defendant was imprisoned under an order of arrest. It appeared, however, that he had given bail and that having, given bail he had been “ discharged from arrest ” as it is expressed in section 573 of the Code of Civil Procedure. Clearly, having been discharged from arrest, he cannot legally be said to be imprisoned under an order of arrest, and for that reason .the preference should have been denied.
¶2The plaintiff cites the case of Knox v. Dubroff (17 App. Div. 290) as authority that the action should have been preferred, but it appeared in that case that the plaintiff had obtained an attachment upon the defendant’s property, and the action was held to be preferable upon that ground. The question discussed in Havemeyer *541Sugar Refining Co. v. Taussig (19 Abb. N. C. 57) has nothing to do with the case at bar. The order, therefore, should be affirmed, with ten dollars costs and disbursements.
¶3Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
¶4Order affirmed, with ten dollars costs and disbursements.