Jacobs v. Hogan

22 N.Y. Sup. Ct. 197

• Court: New York Supreme Court
• Decided: October 15, 1878
• Status: Published

Opinion

Smith, J.:

The motion to set aside the attachment in the suit of Jacobs was made upon the ground of alleged irregularities. It was properly denied, for -the reason that any mere irregularity In that action could not be taken advantage of by a subsequent attaching creditor. If the defendants in the action chose to waive it, the irregularity was of no consequence.

There is nothing conflicting with this position in the cases which hold that an attaching creditor has a specific lien on the property attached, and may attack for fraud other claims upon the debtor’s property. (Rinchey v. Stryker, 26 How. Pr. R., 75; Frost v. Mott, 34 N. Y., 253; Hall v. Stryker, 27 id., 596.) In this case no fraud or collusion is alleged. The moving party is not aided, as his counsel seems to suppose, by the fact that he has obtained a judgment in his attachment suit. His difficulty is that he has no standing in the prior action to question the regularity of the-proceedings in that action. The defendants in the action having waived the irregularities, the proceedings are valid as to creditors, there being no fraud or collusion. The proceedings complained of having been had prior to September 1, 1877, at which time the Code of Civil Procedure took effect section 682 of that Code, does not apply to the case.

The order should be affirmed, with $10 costs and disbursements.

Talcott, P. J., and Noxon, J., concurred.

Ordered accordingly.