Wittner v. Von Minden

34 N.Y. Sup. Ct. 234

• Court: New York Supreme Court
• Decided: May 15, 1882
• Status: Published

Opinion

Beady, J.:

Tbis is an action to recover a sum of money only, to wit, $377.55, as damages for obtaining goods by false and frandnlent representations, as appears from tbe attacbment. Tbe defendant moved to discharge tbe attacbment, upon tbe ground that there was no provision in tbe Code allowing tbe issuance of such a process upon such an allegation.

Section 635 of tbe Code of OivilProcedure' designates tbe actions in which a warrant of attacbment may be granted, and section 686 declares what must be shown in order to procure one ; and in neither of these sections is there any reference made to claims resting upon allegations of fraud in contracting tbe debt. It is not provided by either that an attacbment may issue in an action brought to-recover the price or value of goods which were obtained by false representations.

It may be that if the action were trover, under section 635 an attacbment might issue.

But that question is not involved upon this appeal, and it is not, therefore, necessary to consider it. It is sufficient to say that tbe sections to which reference has been made do not authorize, in an action like this, the granting of an attachment upon the charge on which it rests herein.

The views presented upon this appeal by the learned counsel for the appellant must therefore prevail, and the order appealed from be reversed, and the attachment discharged, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred. Present — Beady, P. J., and Daniels, J.

Order reversed, and attachment discharged, with ten dollars costs and disbursements.