Goodyear v. Commercial Fire Insurance

68 N.Y.S. 756, 58 A.D. 611

Opinion

RUMSEY, J.

This motion was granted, and the writ of attachment vacated, upon the ground that the action was prematurely brought. Upon motions for relief of this kind, the merits of the action will not usually be considered, and, unless it is certain that the complaint is so defective that the plaintiffs cannot recover in the action, the motion will be denied, and the writ of attachment continued until the final determination of the action. Furbush v. Nye, 17 App. Div. 325, 45 N. Y. Supp. 214; Investment Co. v. Moore, 35 App. Div. 421, 54 N. Y. Supp. 787. The application of this rule requires that this order should be reversed, and the motion to vacate the attachment denied.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.