Garbutt v. Hanff

15 Abb. Pr. 189

Opinion

By the Court.

*—Clerke, J.

I. The objection that the defendants were too late with their motion, is not tenable. Section 241 of the Code, allowing a defendant to give an undertaking for the return of the property attached, does not, even in its original form, contain any thing to preclude him from the right to move to set aside the attachment, and,, as amended, it expressly says that, “in all cases, the defendant may move to discharge the attachment.”

II. As to the merits, so far as the facts are involved, we see no reason why we should disturb the conclusions of the judge at special term from the conflicting evidence presented to him in the affidavits; and, so far as any legal questions are involved, we think his conclusions are in conformity with the previous decisions of this court on the same subject.

The order should be affirmed, with costs.

Order accordingly.

Present, Ingraham, P. J., Barnard and Clerke, JJ.