Henry Stuart Ltd. v. Jules Moskowitz & Co.

Appellate Division of the Supreme Court of New York

Henry Stuart Ltd. v. Jules Moskowitz & Co.

44 A.D.2d 798, 355 N.Y.S.2d 389, 1974 N.Y. App. Div. LEXIS 5090

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1974

StatusPublished

Cited by5 cases

This text of 44 A.D.2d 798 (Henry Stuart Ltd. v. Jules Moskowitz & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry Stuart Ltd. v. Jules Moskowitz & Co., 44 A.D.2d 798, 355 N.Y.S.2d 389, 1974 N.Y. App. Div. LEXIS 5090 (N.Y. Ct. App. 1974).

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Opinion

Order, Supreme Court, New York County, entered January 16, 1974, unanimously modified, on the law and the facts, to strike that portion -of the final decretal paragraph which vacated the order of attachment previously obtained by Delor Fabrics, Inc., and to reinstate said order of attachment, and, as so modified, the order is affirmed, without costs and without disbursements. An order of attachment may be vacated pursuant to CPLR 6223 -only upon a determination that it was illegally or improperly issued (Green River Distilling Co. v. Massachusetts Bonding & Ins. Co., 234 N. Y. 109; 7A Weinstein-Korn-Miller, par. 6223.01). Accordingly, since on a prior motion to vacate, it was determined that the order of attachment herein was properly issued, it was error for the court below to thereafter vacate pursuant to CPLR 6223. And, while discharge of an order of attachment (which assumes it validity see Green River Distilling Co. v. Massachusetts . Bonding & Ins. Co., supra) may be obtained pursuant to CPLR 6222, it does not appear that defendant ever sought or obtained an order pursuant to that section approving the proposed undertaking submitted below, or indeed, that defendant complied with the procedures set forth therein, which among other things, requires “ payment of the sheriff’s fees and expenses.” Concur — Markewich, J. P., Kupferman, Murphy, Lupiano and Tilzer, JJ.

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Order, Supreme Court, New York County, entered January 16, 1974, unanimously modified, on the law and the facts, to strike that portion -of the final decretal paragraph which vacated the order of attachment previously obtained by Delor Fabrics, Inc., and to reinstate said order of attachment, and, as so modified, the order is affirmed, without costs and without disbursements. An order of attachment may be vacated pursuant to CPLR 6223 -only upon a determination that it was illegally or improperly issued (Green River Distilling Co. v. Massachusetts Bonding & Ins. Co., 234 N. Y. 109; 7A Weinstein-Korn-Miller, par. 6223.01). Accordingly, since on a prior motion to vacate, it was determined that the order of attachment herein was properly issued, it was error for the court below to thereafter vacate pursuant to CPLR 6223. And, while discharge of an order of attachment (which assumes it validity see Green River Distilling Co. v. Massachusetts . Bonding & Ins. Co., supra) may be obtained pursuant to CPLR 6222, it does not appear that defendant ever sought or obtained an order pursuant to that section approving the proposed undertaking submitted below, or indeed, that defendant complied with the procedures set forth therein, which among other things, requires “ payment of the sheriff’s fees and expenses.” Concur — Markewich, J. P., Kupferman, Murphy, Lupiano and Tilzer, JJ.

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Bluebook (online)

44 A.D.2d 798, 355 N.Y.S.2d 389, 1974 N.Y. App. Div. LEXIS 5090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-stuart-ltd-v-jules-moskowitz-co-nyappdiv-1974.

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