Heilbronn v. Herzog

17 A.D. 416, 45 N.Y.S. 268

Opinion

O’Brien, J.:

The question of the sufficiency of the affidavit, we think, is disposed of by our decision

* handed down herewith upon the other appeal in.the action between these same parties, for while there are some slight differences the affidavits on which the attachments were obtained are substantially identical. This brings us to the question of regularity.

Had it been shown that a second application was made in the same action, without disclosing or stating as required by the rule that a previous application had been made, the judge would have been entirely justified upon this ground alone in vacating the second attachment. Hére the defendant asserted the existence of that state of affairs by producing the affidavit of a clerk showing that in a prior action between the same parties another attachment had been issued for the same cause of action, and if there were nothing ■ further in the case this would be sufficient to support the decision of. the judge. The plaintiffs, however, as appears by the recitals in the order appealed from, offered to show by affidavit that the second attachment was issued in a second and distinct action commenced by the issuance of a new summons, and that the statement had been made to the court that an-attachment in the first and distinct action had been granted. We do not see why, after having received the affidavit of the defendant, the plaintiffs were not permitted to show, if they could, that the defendant was mistaken, and in view of the recitals in the order, we must assume that the plaintiffs could have shown that the second attachment was granted in a separate and dis- . tinct action. We may well rest the reversal of this order- upon such - refusal, because little argument is necessary to sustain the proposition that where a defendant by' additional affidavits attempts to show the existence of a prior attachment in the same action, he cannot insist that own affidavits alone shall be considered by the court,. and that the affidavits of his adversary contradicting his affirmance shall be excluded.

We think the order appealed from should be reversed and the attachment reinstated, and the motion sent back to the Special Term, where, with all the facts before it, the court can determine de novo whether upon any ground the attachment should.be vacated.

Ordered accordingly, with ten dollars costs and disbursements to the appellant to abide the event.

Patterson, Williams, Ingraham and Parker, <TJ., concurred.

' Order reversed and attachment reinstated and motion sent back .to Special Term, with ten dollars costs and disbursements to appellant to abide the event.

See post, p. 637.