40 N.Y.S. 994 | N.Y. App. Div. | 1896
It is conceded that the first attachment, namely, that of December 7, 1895, fell because of the failure to serve the summons as required by law. Upon the 14th day of May, 1896, the defendant ■served papers upon a motion to vacate this attachment, specifying as one of the grounds of the motion that the terms of the order of publication had not been complied with. Upon the 15th day of May, 1896, the plaintiff’s attorneys notified the defendant’s attorneys .and the sheriff that the plaintiff withdrew the attachment. Still later, on May 19, 1896, the sheriff returned the attachment with this indorsement: “ The within attachment has been withdrawn.” The plaintiff now insists that, as the attachment fell by operation of law, and especially in view of its formal withdrawal, the motion to vacate was futile and unnecessary. It is, however, the settled practice not to leave the question of the existence or non-existence of the attachment, under such circumstances, ojien upon the record and dependent upon evidence, but to enter a formal order in accordance with the facts and the legal consequences following thereupon. It was held in Betzemann v. Brooks (31 Hun, 271) that, although the attachment had become inoperative by reason of the omission to serve the summons, yet the defendant was entitled to an order definitely declaring that to be the fact. The order in that case denying the application was accordingly reversed and the attachment vacated. The same practice was adopted in Blossom v. Estes (22 Hun, 472 ; affd., 84 N. Y. 614). Indeed, this question of jurisdiction has, in all the cases, been determined upon motion to vacate. (Taylor v. Troncoso, 76 N. Y. 599 ; Majarrietta v. Saenz, 80 id. 547 ; Catlin v. Rick, 91 id. 668.) The defendant was entitled to a formal
The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the first attachment granted, with ten dollars costs.
Present — Barrett, Rumsey, Patterson and Ingraham, JJ.
Order reversed, with ten dollars costs and disbursements, and motion to vacate the first attachment granted, with ten dollars costs.
