McDonnell & Co. v. Sarlie

21 A.D.2d 767, 250 N.Y.S.2d 672, 1964 N.Y. App. Div. LEXIS 3507

Opinion

Appeal from order entered July 12, 1962, denying motion to vacate attachment dismissed as moot. Order, entered on October 22, 1962, vacating warrant of attachment unanimously reversed, on the law and the facts and attachment reinstated, with $20 costs and disbursements to the appellant. Defendant made successive motions .to dismiss the warrant of attachment issued in this action. Special Term denied the earlier motion; the second motion was granted. Upon this motion there was proof that defendant was engaged in transactions which were designed to dispose of and secrete property from his creditors. This constituted sufficient grounds (CPLR 6201, subd. 4). It is true that on the earlier application this proof was not submitted. This fact did not preclude plaintiff from introducing the proof on the second application (CPLR 6223). It having been shown on the second application that sufficient grounds for issuance of the warrant existed, it becomes academic whether the earlier application was properly denied. Concur — Botein, P. J., McNally, Eager, Steuer and Staley, JJ.