53 N.Y.S. 834 | N.Y. App. Div. | 1898
This action was begun in September, 1893, and on that day an attachment was granted against the defendant who was a non-re.sident. The action was tried on the 16th of March, 1896, and resulted in a verdict for the plaintiff for a considerable amount of money, upon which judgment was entered. An appeal was taken from that judgment to this court, and it was reversed, the court holding that the facts alleged in the complaint and proved did not make out a cause of action, and that the plaintiff should have been nonsuited. Another trial was had in December, 1897, at which the same evidence only was presented to the court, and thereupon, at the close of the case, the court directed a verdict for the defendant. Judgment was entered upon that verdict, and an appeal was taken, and an undertaking staying proceedings upon the judgment pending the appeal was duly given. Such being the condition of affairs, a motion was made a.t the Special Term for an order vacating the warrant of attachment upon the ground that the plaintiff had no cause of action against the defendant. That, motion was granted, and from the order granting it this appeal is taken.
There can be no doubt of the right of a defendant against whose property a warrant of attachment has been issued to move to vacate the attachment upon the grotind that no cause of action is made to appear by the conrplaint; nor is there any question that the court may properly grant such a motion, although it has been held that an attachment will not be vacated for such reason unless there is no doubt whether a cause of action is set-out in the complaint. (Furbush v. Nye, 17 App. Div. 325.) In this case, therefore, as it appears that no cause of action is set out against the defendant, the ■ attachment might very properly have been vacated but for the provisions of the Code of Civil Procedure which fix the status of a warrant of .attachment during the time that an appeal is pending from a judgment in favor of the defendant and after proceedings upon that judgment have . been stayed pending the appeal. By
' For this reason the' order vacating. the warrant of attachment should be reversed, with ten dollars costs and disbursements, and the motion to vacate the warrant denied, with ten dollars costs.
Barrett, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.