26 A.D.2d 916 | N.Y. App. Div. | 1966
Order entered September 21, 1966, unanimously reversed, on the law and the facts, and the motion to vacate the attachment is denied and the attachment is reinstated, with $30 costs and disbursements to abide the event. The defendant moved for an order pursuant to CPLR 6223 to vacate a warrant of attachment and levies made thereunder. In the circumstances the attachment could only be vacated if it should be found that it is unnecessary to the security of the plaintiff”. We agree with the Appellate Term’s conclusion in Zeiberg v. Robosonics, Inc. (43 Misc 2d 134) that the burden of proof is on the defendant to show that the attachment is unnecessary. The defendant failed to sustain that burden. Moreover, on the entire record it seems clear that the attachment is needed for security, and, accordingly, the attachment and levies made thereunder should not have been vacated. Concur — Breitel, J. P., Rabin, McNally, Steuer and Capozzoli, JJ.