Isham v. Ketchum

46 Barb. 43

• Court: New York Supreme Court
• Decided: April 2, 1866
• Status: Published

Opinion

By the Court, Sutherland, J.

I am inclined to think that the order appealed from should be affirmed on the merits ; but it is unnecessary to decide that question; for it appears to me quite plain that the plaintiff in the last two actions had no standing in court, by petition or otherwise, to make the motion.

[New York General Term, April 2, 1866.

By the Code, (§ 241,) the defendant in an attachment may, in all cases, move to discharge it; but I have not been able to find any precedent for such a motion by a subsequent attachment - creditor on the ground that the prior attach-, ment was irregularly issued. It seems to have been decided, in the matter of Griswold, (13 Barb. 413,) that no person could take advantage of a want of regularity in the issuing of an attachment under the Code, other than a party to the action in which the attachment issues, injuriously affected by it.

On principie, I do not see why the plaintiff in the last two actions should be permitted to make the motion he did. He did not allege or pretend, that the debts or claims for which the first actions were brought were not just and bona fide ; nor that there was any collusion between the plaintiff and the defendants in those actions. If the attachments in those actions were irregularly issued, yet if the defendants in those actions chose to waive such irregularity, and thus in effect secure the payment of the debts or claims for ■which the first actions were brought, what had the plaintiff in the last two actions to do with that ? The defendant's had a right to pay, or secure the payment of, the debts or claims for which the two first actions were brought, before, or in preference to the debts for which the last two actions were brought.

The order appealed from should be affirmed, with costs.

Geo. G. Barnard, Ingraham and Sutherland, Justices.]