Vogelman v. Lewit

48 Misc. 625 | N.Y. App. Term. | 1905

Per Curiam.

The plaintiff obtained an attachment against the property of the defendant upon the ground that the defendant was a nonresident; his affidavit stating that “ on various occasions the deponent met the defendant and had asked him where he kept his place of business. That defendant then informed deponent that he resided and kept his place of business * * * New Jersey.”

Defendant moved to vacate the attachment upon his own and the affidavits of two others. In his own affidavit he admití that he resides in New Jersey. This cures the insufficiency of the proof given by the plaintiff as to the residence of the defendant, if any existed. The further ground urged for vacating the attachment was that the chose in action, or money levied upon by the marshal as being the prop,erty of the defendant, was not his property. This is not available to the defendant.

The plaintiff’s affidavit alleges that the goods sold to the defendant, for which he claims he is indebted to him, were sold September 2, 1905; his affidavit was verified June 5, 1905; this is clearly a clerical error and it may be treated as surplusage. It then leaves the affidavit simply without stating any time when the goods were sold, nor is it necessary that it should fix a time.'

Present: Scott, Gildersleeve and MacLean, JJ.

Judgment affirmed, with costs.