155 Misc. 384 | N.Y. Sup. Ct. | 1934
Motion for reargument granted and on reargument decision herein of July 3, 1934, is reconsidered and modified as follows: The decision of the Appellate Division (241 App. Div. 350), affirming the order of Mr. Justice Valente (151 Misc. 151), was expressly made “ without prejudice ” to a motion by defendant to reduce the amount of the attachment and also without consideration of the right of plaintiff to recover the total value of the policy on the theory of anticipatory breach. The holding that the decision was without prejudice to a motion to reduce enables this court to go into the matter of reduction de nova. The affirmance of the Appellate Division, in view of the language used, merely held that the complaint stated some cause of action, but it was expressly without consideration of the right of plaintiff to recover the total value of the policy on the theory of anticipatory breach. After a consideration of all the facts and circumstances, I conclude that the motion to reduce the attachment should be granted. The monthly installment alleged to be due at the commencement of the action was $1,080. To cover this amount and interest and costs the motion to reduce the attachment is granted and the attachment is reduced to $1,800. Settle order on one day’s notice on or before July eighteenth. Any application for a stay pending appeal must be made to a justice of the Appellate Division.
