61 Barb. 266 | N.Y. Sup. Ct. | 1870
The attachment in this ease was obtained under the provisions of the Code, and the defendant in such case has two methods of proceeding to obtain a discharge of the attachment; one by entering ihto an undertaking to the plaintiff, (after appearance,) to the- effect that he will pay any judgment to be recovered, and this is almost a matter of right. Although application must be made to the officer who issued the attachment, or to the court, for an order, it is still but an ex parte application, (13 Abb. 432; 22 How. Pr. 106;) and if granted, the property attached, and all proceeds of property sold, &c., are to.be delivered to the defendant. (Code, §§ 240, 241.) This method is impracticable in this case, by reason of a previous attachment having been obtained by "other parties, and other complications existing. Section 241 also provides “ that the defendant may move to discharge the attachment as in the case of other provisional remedies.” This provision includes all-cases, as well cases of want of jurisdiction by the officer who issued it; cases of fraud in obtaining the attachment; cases of defective papers; and various others; though it has .been doubted whether, in cases where the attachment has been regularly issued against an absconding debtor, upon sufficient evidence to confer jurisdiction, the order can be reversed. The first decisions holding to this rule were based upon the provisions of the Code as they existed prior to the amendment of section 141, in 1857, which provision added these words: “ And in-all cases the defendant may move to discharge the attachment, as in the case of other provisional
There is, then, nothing that arises in the way of objec- • tion to the defendant’s right to make the motion in question now, except the question of laches; and this I think is sufficiently excused in his affidavits, of facts which are not effectually controverted.
The next questions that arise are, what facts may the defendant set up as the ground of his motion ? These grounds, we have already stated,' are any ground of merits, defective papers, jurisdiction, &c. How, then, may the plaintiff meet such facts? I think the true rule is, in cases where the defendant moves upon his affidavit, or affidavits made on his behalf, that the plaintiff may oppose such motion, as in other cases, by affidavits which either explain or contradict those offered by the moving party. The cases of Dickinson v. Benham, (19 How. Pr. 410,) and Wilson v. Britton, (6 Abb. 33,) present the true rule on this subject, which is as above stated, and also the rule that where the motion is made on the plaintiff’s original affidavits alone, no further affidavits on the part of the plaintiff are admissible. In this case, the defendant moves, not only upon the original affidavits used in
There is still one other relief prayed for by the defendant, which is,-that the judgment obtained by the plaintiff be vacated and set aside, and that the defendant be permitted to come in and defend; and that all future proceedings under said judgment be stayed. Two objections are made to the granting of this relief, viz., laches in making the application, and want of merit.
In regard to laches, the defendants’ affidavits, if true, are sufficient to excuse them. His sickness and the sickness of his family, and his continued inability to return home after he deliberately determined so to do, is not contradicted by facts or circumstances sufficient to make it doubtful, or to affect the probability of his and the corroborating statements. As to merits, the uncontradicted statements are, that the judgment is to an amount exceeding $2500 ; that to that extent it was upon a demand for which the defendant, upon a settlement with the plaintiffs, had given them his promissory notes, and those notes were not due when the action was commenced. This presents a question of
Potter, Justice.]