35 N.Y.S. 519 | N.Y. Sup. Ct. | 1895
A warrant of attachment was granted in this action on the 18th day of July, 1895. The grounds for the attachment were recited therein to be “that said defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors.” The attachment was executed, and the defendant moved to vacate and set it aside upon the ground, first, of the insufficiency of the affidavits upon which
It was quite satisfactorily shown by the affidavits upon which the attachment was issued that the defendant had been fraudulently disposing of a portion of his property, with the intent to defraud his creditors, and that he was about to assign, dispose of, or secrete the balance of it, with a like intent. The papers made a very meritorious case for the attachment, but in preparing it, by inadvertence, plaintiff’s attorney used the word “or,” instead of “and.” It is provided by section 641 of the Code of Civil Procedure that a warrant of attachment must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground for the attachment. The only question we are required to consider is whether the provision requiring the statement of the ground of the attachment is so far mandatory that the court was powerless to correct the inadvertent error. It was not a case of a failure to state the ground for the reason that none in fact existed; for, as stated, the two reasons which the draftsman intended to state in fact existed. The attachment, under our Code, is not an original process by which an action is commenced. It is a mere proceeding in an action. This action was commenced by the service of the summons and complaint. The office of the attachment was to take possession of and hold the debt- or’s property until the recovery of the judgment, and thereby prevent Mm from fraudulently disposing of it. The office of the attachment was not to give the court jurisdiction of the action. The word “must,” in statutes, has been frequently construed not to be mandatory. It was so held in Brinkley v. Brinkley, 56 N. Y. 192; Jenkins v. Putnam, 106 N. Y. 275, 12 N. E. 613; Spears v. Mayor, etc., 72 N. Y. 442; People v. McAdam, 28 Hun, 284; People v. Supervisors of Ulster Co., 34 N. Y. 268; Insurance Co. v. Van Wagonen, 132 N. Y. 404, 30 N. E. 971. There is nothing in section 641 expressly providing, or which indicates that the legislature intended, that a failure to fully state the grounds for the attachment should necessarily make it void. There being notMng in the statute prohibiting it, the court, we think, had the inherent power to permit the amendment. The attachment being a process in the action, power to amend it was given the court by section 723 of the Code, which provides that the court may, at any stage of the action, in furtherance of justice, amend any process or other proceeding by correcting a mistake, etc.
As we are of the opinion that the court had the power to grant the relief, and that it was a very proper case for its exercise, the order vacating the attachment should be reversed, and the plaintiff’s motion to amend the attachment granted. All concur.