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

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.