Kallman v. Henderson

25 A.D.2d 507, 266 N.Y.S.2d 614, 1966 N.Y. App. Div. LEXIS 5051

Opinions

Order entered October 4, 1965, vacating the warrants of attachment herein, reversed, on the law, on the facts and in the exercise of discretion, with $50 costs and disbursements to plaintiff-appellant, and the motion therefor denied. Defendant Henderson is in default as to both the complaint and amended complaint. The vacatur of the California default judgment against Henderson occurred after the warrants of attachment issued. The court’s jurisdiction to grant the attachments is not challenged. The vacatur of the California judgment affects only the proof of plaintiff’s claim; it may not now be established by the judgment and may require proof of the original claim. Respondents are not parties to the suit herein and especially in the light of Henderson’s default may not defend on the merits in behalf of Henderson, as they seek to do herein. Where the application to vacate an attachment is not made by a defendant, the sole question is whether there was jurisdiction to grant the attachment. (Haebler v. Bernharth, 115 N. Y. 459, 463.) We are not here concerned with any levy or property affected thereby. In the event we would have found that vacation of the attachments was mandated as a matter of law, the exercise of discretion in the peculiar circumstances presented would have induced us to take other appropriate action. Specifically, we would have stayed execution of the order vacating the attachments pending the determination of the action in California.

Concur — McNally, J. P., Eager, Steuer and Witmer, JJ.;