Waverly Co. v. Worthington Co.

53 N.Y. St. Rep. 520

Opinion

McAdaat, J.

Every fact upon which the plaintiff relied to sustain the provisional remedy invoked was denied and disproved by the defendant’s officers, so that the court below, on the whole case, was called upon to determine whether the attachment should be continued or not. It decided upon the entire proofs that the attachment should be vacated and committed no error in reaching that conclusion. The order made by the supreme court January 26th, 1893, appointing a temporary receiver of the defendant’s property in proceedings for a voluntary dissolution of the corporation, did not disable the defendant from moving to vacate the attachment. See Parry v. Am. Opera Co., 12 CFiv. Pro., 194; Auburn Button Co. v. Sylvester, 52 St. Rep., 181. This upon the ground that a corporation so situated is like a debtor who makes a general assignment before or after the attachment; either may make a motion to vacate because of the residuary interest in the proceeds of the attached property after the creditors are paid. Brewer v. Tucker, 13 Abb. Pr., 76; Dickerson v. Benham, 20 How. Pr., 343; S. C. 10 Abb. Pr., 390; Gasherie v. Apple, 14 id., 64. It follows that the order appealed from must be affirmed, with costs.

Gildersleeve, J., concurs.