30 N.Y.S. 527 | N.Y. Sup. Ct. | 1894
We see no reason for interfering" with the action of the court below. The moving party, upon the new papers, has obtained an attachment in which the previous defects were obviated. The motion made for the issuing of the new attachment was not a renewal of the old motion, but one based upon a new state of facts. It therefore required no leave for its presentation. The court out of which the original process was issued had power to vacate the same, and, having so done, the parties were in the same situation as though no such proceedings had been taken. The objection that there was no sufficient allegation in respect to counterclaims is not well taken. In case of a suit by the assignee of a claim it is sufficient if such assignee avers that there are no counterclaims to his knowledge, this being the requirement of the Code.
Code Civ. Proc. § 636, subd. 1.
