60 N.Y.S. 1108 | N.Y. App. Div. | 1899
The point presented by this appeal is whether the defendant, who has been defeated in his application to vacate an attachment upon the papers on which it was granted, may again move without leave •of the court, upon affidavits, to vacate the warrant. It was held in the carefully-considered case of Thalheimer v. Hays (42 Hun, 93) that a defendant had that right under section 683 of the Code of Civil Procedure. We think that case was well decided, and we can add nothing to its reasoning. The appellant contends that this •court, in Sheehan v. Carvalho (12 App. Div. 430), took a different view of the rights of interested'parties under section 683. This, however, is not the fact. Sheehan v. Carvalho was not an attachment case. It was an application to vacate an order to examine witnesses before trial. What we held there was that in the ordinary proceedings attendant upon the course of an action — where dual motions are not specifically provided for — a party cannot move to vacate his adversary’s order for insufficiency of the papers upon which it was granted, and when defeated renew the motion upon Affidavits without leave of the court. That undoubtedly is the gen
The order appealed from was right, and should .be affirmed, with ten dollars costs and disbursements.
Van Brunt; P. J., Rumsey, Patterson and O’Brien, JJ.,. concurred.
Order affirmed, with ten dollars costs and disbursements.
