Van Wyck v. Bauer

9 Abb. Pr. 142

• Court: New York Supreme Court
• Decided: October 15, 1870
• Status: Published

Opinion

Cardozo, J.

The attachment in this case must be vacated: First, because this is not an action for the recovery of money only. The case of Corson v. Ball, 47 Barb., 453, was decided before the amendment of 1866, when the Code authorized an attachment in an action for the recovery of money, without the limitation .that the action must, as is now provided, be for the recovery of money only. That case, therefore, is inapplicable to the statute as it now reads, and as this action seeks other relief, before there can be any judg-. ment for money, it is not an action for the recovery of money only, and, therefore, an attachment cannot issue.

If this difficulty did not exist, I think there would be much trouble in holding that the affidavits make a case of fraudulent disposition of the defendants’ property. The ground assumed in one branch of the affidavit, that the bond and mortgage have been wrongfully converted by the defendants, will not assist to support the attachment, because the action is not for such wrongful conversion.

In any view, of the case, the attachment must be vacated.