Appleton v. Speer

57 Jones & S. 119, 24 N.Y. St. Rep. 962, 57 N.Y. Sup. Ct. 119

Opinion

By the Court. — Sedgwick, Ch. J.

From the original papers, taken together, on which the order of attachment was issued, it appeared that some facts, the existence of which it was necessary to prove, were sworn to upon information and belief and the sources of the information not disclosed. For this reason the court below was correct in granting the motion to vacate the order. The original defect could not be remedied by proving by other affidavits produced upon the motion to vacate, that the facts referred to really existed, and the more is this true, because the motion to vacate was made upon the original papers when the plaintiff has no right topresent additional papers. Steuben Co. Bank v. Alberger, 75 N. Y. 179.

The order should be affirmed with $10 costs.

Freedman, J., concurred.

Truax, J.

The order should be affirmed for the reasons assigned by the chief judge. See Cribben v. Schillinger, 30 Hun, 248 ; Marine Nat. Bank v. Ward, 35 Ib. 395 ; Buhl v. Buhl, 41 Ib. 61 ; Lee v. Co-operative, &c., 19 N. Y. St. Rep. 879.