Cohn v. Children's Furniture Corp.

133 Misc. 151, 231 N.Y.S. 35, 1928 N.Y. Misc. LEXIS 1080

Opinion

Evans, J.

Motion to vacate warrant of attachment on the sole ground that the attorney procuring it did not have his name subscribed to the warrant. The attorney’s name and address did appear on a paper attached and backed up to the warrant. Formerly such an omission would have been fatal to the warrant, since it was jurisdictional. It was jurisdictional because the statute commanded the form of the paper. (Code Civ. Proc. § 641; Lassen v. Burt, 43 Misc. 582.) The statute no longer controls it, and leaves the matter of form to the rules of court. (Civ. Prac. Act, § 909; Rules Civ. Prac. rule 84.) All that can be said of the warrant is that it is irregular in not following the form the rule prescribes. There are similar requirements, as to form, to be found in rules 11 and 13 of the Rules of Civil Practice. The question being one of form rather than of substance, the inquiry should be as to whether any harm came of it. None is suggested. It has been held by legal writers and courts that, where several papers are attached together, an indorsement of the attorney’s name and address upon the back of the outer one serves for all. (See Hull v. Canandaigua Elec. Light & Railroad Co., 55 App. Div. 419.)

Motion denied.