Appleton v. Speer

6 N.Y.S. 511, 1889 N.Y. Misc. LEXIS 657

• Court: The Superior Court of the City of New York and Buffalo
• Decided: June 28, 1889
• Status: Published

Opinion

Sedgwick, C. 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 source 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 at the time; nor is this true, because the motion to vacate was made upon the original papers, when the plaintiff has no right to present additional papers. Bank v. Alberger, 75 N. Y. 179. The order should be affirmed, with $10 costs.

Freedman, J., concurs.

Truax, J.

The order should be affirmed for the reasons assigned by the chief judge. See Cribben v. Schillinger, 30 Hun, 248; Bank v. Ward, 35 Hun, 395; Buhl v. Ball, 41 Hun, 61; Lee v. Association, 2 N. Y. Supp. 864.