Farley v. Overbury

252 A.D. 882, 299 N.Y.S. 990, 1937 N.Y. App. Div. LEXIS 6671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1937
• Status: Published

Opinion

Order in so far as it denies defendant’s motion to vacate the attachment and the levy thereunder reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order, in so far as it denies defendant’s motion to dismiss the summons and complaint, affirmed, without costs. Except for proof of defendant’s non-residence, plaintiff has failed to allege evidentiary facts showing he is entitled to the attachment. On the other hand, the evidentiary facts alleged by defendant show plaintiff is not the real party in interest and, hence, has no cause of action against defendant on the notes which are the subject-matter of the action. In the absence of affirmative proof that plaintiff has a good cause of action and that the sum claimed is due to him, the drastic remedy of an attachment may not be granted. (Civ. Prac. Act, § 903; Georgis v. Giocalas, 225 App. Div. 577; Dicoa Company, Inc., v. Kokomo Sanitary Pottery Corporation, 249 id. 645, and cases there cited.) Hagarty, Carswell, Johnston and Close, JJ., concur; Taylor, J., not voting.