Maniscalco v. Slamowitz

123 A.D. 690, 108 N.Y.S. 65, 1908 N.Y. App. Div. LEXIS 161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinion

Gaynor, J.:

• The motion to vacate the order of arrest was made on the papers on which it was granted, and hence the two new affidavits of the plaintiff could not be read in opposition (Code Civ. Pro. § 568). One of the affidavits on which the order of arrest was granted purported .to be by the plaintiff, but was in .fact signed by another, and the jurat attested that he swore to it. It was thus a nullity. .It was corrected after the. notice of motion to vacate the order of arrest was given, and it and a new affidavit by the plaintiff explaining the error are the two affidavits which the order of resettlement directed to be recited as having been read in opposition. They could not be read any more than any other affidavits. .

The appellant also argues that the order denying the motion to vacate the order of arrest should be reversed, but there is no notice of appeal from that order in the record.

The order of resettlement should be reversed.

Woodward, Jenks, Hooker arid Miller, JJ., concurred.

Order of resettlement reversed,' with ten' dollars costs and disbursements, in accordance with opinion, and motion denied, with costs.