Delamanarus v. Traparis

49 Misc. 636, 98 N.Y.S. 515

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Giegerich, J.

In this case, the defendants have appealed from the judgment for the sole purpose of bringing up for review an order denying a motion to vacate the attachment which the plaintiff had obtained from a justice of the Municipal Court, against their property.

The precise question here presented arose in Rosenthal v. Grouse, 12 Daly, 529, and in Schnauffer v. Catterbury, 16 id. 358, where it was held that a warrant of attachment was merely a provisional remedy, not involving the merits of the action, nor the validity of the process by which the defendant was brought into court, and that error of the justice in refusing to vacate it was not ground for reversal of a judgment against the defendant subsequently rendered in the action.

The court in the case first cited points out that, if there was no error in the judgment in the court below, there can 'be no error in the judgment when it is brought into the appellate court for review.

Mo provision of the Municipal Court Act is cited, nor •can I find any, which authorizes this court to review upon appeal an order of the character in question.

Neither the provisions for appeals from orders (Municipal Court Act, §§ 253-257) nor from judgments (id., § 310) cover orders in attachment proceedings.

The cases above cited are, therefore, decisive of the questions involved, and, as no error in the judgment is claimed, it must be affirmed.

The judgment must, therefore, be affirmed, with costs.

Scott and Greenbaum, JJ., concur.

Judgment affirmed, with costs.