Allied Manufacturers, Inc. v. Zurn

165 A.D. 975, 150 N.Y.S. 243

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1914
• Status: Published

Opinion

Dowling, J.:

The original moving papers upon which the attachment herein was granted, reasonably construed, are sufficient to aver performance of the contract in question by the plaintiff. If the plaintiff’s allegations plainly directed to the statement of that fact were deficient in any particular, the omission could readily have been supplied had an objection been urged upon that ground, for the facts as stated show that plaintiff claimed and intended to rely upon full performance of the contract by him. Nor does the defendant seriously question the sufficiency of the moving papers, but he has submitted affidavits seeking to establish nonperformance by the plaintiff, and asks that the attachment be vacated upon that ground. It would seem that the plaintiff is entitled to have that issue, which is the vital point of the case, determined upon a trial and not upon affidavits. The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the warrant of attachment denied, with ten dollars costs. Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.