American Audit Co. v. Industrial Federation of America

84 N.Y.S. 369 | N.Y. App. Div. | 1903

Ingraham, J.:

At the commencement of this action a warrant of attachment was obtained. Subsequently the defendant appeared and moved to vacate such attachment. This motion was made upon an order to show cause and the affidavits of the defendant’s secretary and the defendant’s attorney. When that motion came on to be heard, counsel, for the plaintiff stated in open court that the action had been discontinued before the appearance of the defendant, whereupon an order was entered without reciting the filing of any papers, but reciting that the plaintiff appearing and by way of preliminary objection making it known to the court that the above entitled action had been discontinued before the appearance of the defendant by order entered herein the, 23rd day of March, ■ 1903,’’ upon motion of the attorney for the plaintiff it was ordered that the effect of the said order of discontinuance be declared to be that the said attachment is vacated and annulled. That order having been entered, the defendant moved upon notice for a resettlement thereof, based upon an affidavit of the defendant’s attorney stating that the original motion to vacate the attachment was made upon an order to show cause and two affidavits; that the motion was argued at Special Term, and after the defendant’s counsel had concluded the argument the plaintiff stated that the action had been discontinued ex forte on March 23, 1903, and thereupon the defendant’s counsel requested the court to grant the motion; that after some discussion a memorandum was indorsed upon the papers: “ Motion granted. No costs. Settle order on notice.” Subseqiiently the court entered an order which declared the effect of an order of discontinuance upon defendant’s motion to vacate the attachment.

The defendant was entitled to have the papers upon which the motion was made recited in the order. Rule 3 of the General Rules of Practice provides that when any order is entered all the papers used or read on the motion on either side shall be specified in the order, and shall be filed with the clerk, unless already on file, or otherwise ordered by the court, or the order may be set aside as irregular. If it had appeared that the action had been discontinued before the defendant had appeared, such a discontinuance would, in effect, vacate the attachment, and the defendant, whose property was subject to a levy under the attachment, was entitled to have a formal order entered vacating it. (Corn Exchange Bank v. Bossio, 8 App. Div. 306.) He made a motion to have the attachment vacated, and upon that motion an order was made. He was entitled to have the motion papers recited in the order.

The order denying the motion to resettle the order is reversed and the case sent back to the justice to resettle the order by reciting papers upon which the application to him was made, with ten dollars costs and disbursements of this appeal to the appellant.

Van Brunt, P. J., Patterson, O’Brien and Hatch, JJ., concurred.

Order reversed, with ten dollars Costs and disbursements, and case sent back to justice to resettle order by reciting papers upon which application to him was made.