| N.Y. Sup. Ct. | Jun 18, 1894
This is an appeal from an order denying the motion -of the appellant, a junior attaching creditor, to vacate the plaintiff’s attachment. The action is on contract, and the defendant a foreign corporation. The appellant sought to vacate the attachment on proof by affidavit that the original consideration, out of which the obligation in suit sprang, was the purchase by the defendant, from plaintiff's assignor, of certain shares of the defendant’s own-capital stock; and it also, by proof, showed that such a purchase was, by the law of Pennsylvania (the domicile of defendant), void. The motion was denied oh the ground that the court would not, on such an application, pass upon the merits of the action. We think that this position was correct. The general rule is that on a motion to vacate an attachment the court will not try the cause itself, and •determine whether the plaintiff can succeed or not. Brown v. Wigton (Sup.) 18 N.Y.S. 490" court="N.Y. Sup. Ct." date_filed="1892-03-31" href="https://app.midpage.ai/document/brown-v-wigton-5502549?utm_source=webapp" opinion_id="5502549">18 N. Y. Supp. 490; Paper Co. v. Johnson, Id.; Rowles v. Hoare, 61 Barb. 266" court="N.Y. Sup. Ct." date_filed="1870-11-21" href="https://app.midpage.ai/document/rowles-v-hoare-5462376?utm_source=webapp" opinion_id="5462376">61 Barb. 266. There are some exceptions to this rule, but •this cause plainly is not one. On the contrary, the rule should here