18 N.Y.S. 763 | New York Court of Common Pleas | 1892
The appellant seeks a reversal of the order appealed from on the ground, among others, that the moving papers in this case do not show that any valid attachment had been obtained by the moving creditors, and that, therefore, the motion to vacate her attachment could not be entertained. Had such an objection been made in the court below, it would havd been fatal to the right of the moving creditors to make such application, (Tim v. Smith, 3 Civil Proc. R. 347, affirmed 93 N. Y. 87; Williams v. Waddell, 5 Civil Proc. R. 191; Bruen v. Qillet, 44 Hun, 298; Williams v. Kulla, 11 N. Y. St. Rep. 283; Dayton v. Manufacturing Co.,
The appellant also insists that the particular irregularity is not specified in the moving papers. The order to show cause specifies with sufficient distinctness the grounds upon which the moving creditor moved the court to vacate the warrant of attachment herein; hut, conceding that the ground was not sufficiently pointed out, the record shows that this objection was not raised in the court below, where a full argument and' hearing was had upon the merits, and, under the authorities, the objection cannot now be entertained for the first time. Livermore v. Bainbridge, 14 Abb. Pr. (N. S.) 227; Miller v. Kent, 10 Wkly. Dig. 861, 59 How. Pr. 321.
The appellant also insists that the omission of any of the requirements specified in section 641 of the Code of Civil Procedure is a mere irregularity, and that such an omission may be supplied by amendment. It is difficult to see how such a construction can be placed upon these provisions of the Code, which are mandatory, as clearly appears by the following portions thereof applicable to the case under consideration, viz.: “The warrant must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground of the attachment.” Id. The requisites of the warrant are thus pre
In the case at bar the warrant which was vacated substantially failed to recite the ground of the attachment. It merely recited that “defendant has departed from the city and state of New York. ” This is not one of the grounds specified in the Code for the granting of an attachment. A person has a perfect right to depart from the city and state of New York without subjecting his property to an attachment. In only two instances can an attachment be granted against the property of a person departing from the state, and those-are when he departs either with intent to defraud his creditors or to avoid the-service of a summons. We have not, after some research, been able to find any decision touching the precise point involved. We have been referred to-the case of Bank v. Bushwick, (Sup.) 6 N. Y. Supp. 318, which does not touch the point, and it therefore cannot be regarded as controlling. In that ease an attachment was granted upon the ground that the defendant was-about to fraudulently assign, secrete, or dispose of its property, while thewárrant recited that it had transferred and disposed of its property fraudulently. The court said this was irregular, but, as the defect had not been pointed out in the notice of motion as a ground of vacating the attachment, it could not be taken advantage of. The difference between that case and the one at bar is plain. There the warrant on its face was a good one, as it recited a ground recognized by the Code; but in the case at bar the warrant does not recite any legal ground whatsoever.- The case of Worthington v. Dorsett, 6 N. Y. St. Rep. 861, reversing Daily Reg. Oct. 5,1886, which arose-in the supreme court, is in harmony with the views above expressed. In that case the name of the judge who granted the attachment was omitted' from the copy warrant served. The defendants moved to vacate the attachment, which was denied by the judge at chambers, who held that the omission referred to was a mere irregularity, which it was the duty of the court to-permit to be remedied, and was not a good ground for vacating the attachment. . On appeal, the order denying the motion to vacate the attachment was reversed, and the paper purporting to be an attachment vacated. The-appellant has cited a number of cases, which have been carefully examined and considered, but none of them are at variance with the conclusions arrived at and hereinbefore expressed. As a result of such an examination of the cases so cited, and of those cited by the respondent, it is deemed to be not amiss to state that the following deductions have been drawn therefrom, viz.: (1) That, where the form of a mandate is prescribed by the Code, it must be substantially followed; otherwise the paper will be jurisdictionally defect
The case of Dayton v. McElwee Manuf’g Co. was heard at chambers, (supreme court, New York county,) before Mr. Justice Ingraham, who filed the following memorandum on December 81,1891: “To entitle the moving party to apply to have the plaintiff’s attachment vacated, he must show that he has acquired a lien upon or interest in the defendant’s property after it was attached. To show such, an interest, a copy of the attachment is annexed to the moving papers, granted by one of the justices of this court, directing the’ sheriff to attach the defendant’s property. The affidavits upon which the moving party’s attachment was granted are not made part of these papers, and there is no evidence to show that the justice granting the attachment had jurisdiction to grant it. In Tim v. Smith, 3 Civil Proc. R. 349, it was held that the papers upon which the attachment of the moving party was granted must be made a part of the motion papers, so that the court can determine on the motion whether the judge granting the attachment had jurisdiction, and this case appears to have been followed. I think, therefore, the moving party has failed to show that he.has a lien upon or interest in the defendant’s property, and, for that reason, the motion must be denied. ”