4 How. Pr. 242 | N.Y. Sup. Ct. | 1850
'—-In this case the plaintiff might have applied for an attachment in the first instance, after making demand of the money, (3 Caines, 221; 5 John. 368 ; 4 Cowen, 76 ; 6 Cowen, 596 ; 4 Hill, 42, 565.) Instead of doing so, he commenced an action which was litigated, and after having recovered a judgment in which the costs exceed the amount of money collected, now applies to this court for a more summary remedy. I tMnk the proceeding by action was a waiver of the right to proceed by attachment, It seems to have been so regarded in Bohanan v. Peterson, 9 Wend. 503. It is not right to subject the defendant to the costs of a suit and also of the proceedings by attachment.
Motion denied, but without costs.