Lawrence v. Jones

15 Abb. Pr. 110

Opinion

By the Court.

*—Peckham, J.

The defendant in this case has been guilty of laches in making his motion, and the delay is in no manner explained.

The attachment was issued July 2. The execution issued on the 5th of September. This motion was not noticed until the 25th of September, for the first Monday of October. The defendant seems -to have employed the intermediate time in confessing judgments; and when he had sufficiently and satisfactorily disposed of his property, he makes this motion.

The motion is founded upon an alleged irregularity, viz.: that the plaintiff obtained an attachment on the ground, as stated by him, that the defendant was a non-resident in the State; when, in fact, the defendant was not a non-resident, but had been temporarily absent on business; that he was, and had been for years, a resident of. Steuben county, where his family had, in fact, resided during his absence on business of about ten months.

The rule in cases of mere irregularity requires the party to move at the first opportunity, or show an excuse for not doing so.

Where the merits are involved, the rule is not applied with so much rigor.

Here the plaintiff may be injured by the issuing of other executions. Where the party proceeds, by attachment, he must first sell the attached property. His execution is peculiar. {Code, § 237; 27 Barb., 463.)

Whether the defendant was a non-resident within the meaning of the statute on this subject, it is not necessary to determine. His delay in moving defeats the motion. The order appealed from, denying the motion to set aside the attachment, is„ therefore, affirmed, with $10 costs of the appeal.

Inge ah am, P. J., and Leonard, J., concurred.»

Present, Ingraham, P. J., Leonard and Peckham, JJ.