Waverly Co. v. Worthington Co.

24 N.Y.S. 331, 4 Misc. 447

Opinion

McADAM, 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 26,1893, -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. Opera Co., 12 Civil Proc. R. 194; Button Co. v. Sylvester, (Sup.) 22 N. Y. Supp. 891. 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 be cause 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, 10 Abb. Pr. 390; Gasherie v. Apple, 14 Abb. Pr. 64. It follows that the order appealed from must be" affirmed, with costs.