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The case furnished the court contains no index (rule 5) nor do the papers composing it purport to be certified or to be copies of the return. The rules (1, 5 and 8) as to these matters should have been complied with. Assuming, however, that they are copies of those used below, we find no error in the order appealed from. It sufficiently appears that the action is for the recovery of damages for breach of contract, and the plaintiff's right to an attachment is to be determined by the provisions of section 636 of the Code. By
those he must show by affidavit that he "is entitled to recover a sum stated therein over and above all counter-claims known to him." It is enough if the affidavit shows this to the satisfaction of the judge who receives the application for the warrant, but there must be some evidence. (Steuben Co. Bank v.Alberger, 78 N.Y. 252.) The very words of the statute need not be followed, although they furnish the safest formula. Neither they nor equivalent words were in the affidavit. It may be true, as the affidavit states, that "the defendant is indebted to the plaintiff in the" sum stated, and that he is "justly entitled to recover said sum," but it does not follow that the defendant has not, to the knowledge of the plaintiff, a counter-claim. If he has, it need not be set up, and although judgment should go against the defendant in this action, it would be no answer to a subsequent action by him for its recovery. (Brown v.Gallaudet, 80 N.Y. 417.) The words used have no tendency to show that a counter-claim does not exist. The affidavit, therefore, was insufficient to give the judge jurisdiction to grant the warrant. (Donnell v. Williams, 21 Hun, 216.) But it is now objected by the appellant that the court, in vacating the attachment, acted without jurisdiction: First, because the presiding judge was not the one who granted the attachment. This objection rests on section 683 of the Code, but it will not sustain it. Its provisions distinguish between a court and a judge, provide that the application to vacate must be made to the court, in which case the moving party becomes subject to the usual practice as to notice, and time and place of hearing; or to a judge, and, in that event, to the judge who granted the attachment, whether he is in court or out of court, and subject to his direction, whether the application shall be heard exparte or upon notice. The motion to vacate the attachment was in fact made to the court at Special Term and was properly entertained by it. Second, the affidavit of the party moving to vacate was sufficient. It shows that the warrant issued 3d September, 1880, to the sheriff of the city and county of New York, and the property of the defendant attached, the issuing of executions September 8, 1880, for the
enforcement of judgments against the same debtor, to the same sheriff, and the levy by him on those executions, upon "the property" of the defendant. From these averments no other inference can be drawn than that the attachment and executions were levied upon the same property, and that the lien by execution was acquired after the property was attached. The affidavit, however, goes further and declares that "the lien of the executions is subsequent to that of the attachment." In all respects the affidavit of the moving party was sufficient to give him a standing in court, and as the affidavit on which the attachment issued was insufficient to confer jurisdiction, it was properly vacated and the order appealed from should be affirmed, with costs.
All concur.
Order affirmed.