Claflin v. Baere

57 How. Pr. 78 | N.Y. Sup. Ct. | 1879

Barrett, J.

After careful consideration, we see no way of sustaining this attachment. That the affidavit was insufficient does not admit of debate. The only material statements are upon information and belief and the sources are not given.

2. The discharge of the attachment under section 687 does not prevent the vacating or modifying of the warrant under section 682. The former proceeding is merely to release the attached property in whole or in part by substituting security therefor. The order thereon is that the attachment be discharged “ as to the whole or a part of the property attached ” (See Garbelt agt. Hauff, 15 Abb., 189).

3. Nor does the assignment estop the defendants. They have a right to a judgment on these charges of fraud; besides they have a reversionary interest in the assigned or attached property (See 20 Hun, 343; 13 Abb., 76; 14 Abb., 64).

4. There is no question of laches, as section 682 extends the time to move until the actual application of the attached property to the payment of a judgment recovered in the action.

5. There is nothing in the claim of acquiescence. The defendants did not use the attachment. They were told that the lien was complete, and the question of keeping a man in charge was one of convenience merely; it was understood that whether the man remained, went out or was recalled, the validity of the hen was not affected. The talk, therefore, about giving the defendants the power to recall the keeper in case other attachments were issued, cannot deprive them of their statutory right to contest the validity of the proceedings.

The attachment must he vacated, with costs.