Foley v. Virtue — 8 Abb. Pr. 407

Majority

p. 407

FOLEY against VIRTUE.

New York Common Pleas ; Special Term,

May, 1870.

Headnote

Attachment.—Motion to Yac ate.—Security.

An attachment, granted as a provisional remedy under the Code of Procedure, upon the ground of the non-residence of defendant, and upon a sufficient affidavit, cannot be vacated on motion, by disproving the alleged cause of action.

Nor will the court in such a case allow a discharge of the property attached, on nominal security.

Motion to vacate an attachment.

This action was brought by John T. Foley and another against William A. Yirtue and another. It appeared that in 1866 the plaintiffs entered into a contract' with defendants, by which the former were to have the exclusive sale of a book known as the “Devotion to the Blessed Yirgin” in North America, throughout the United States, except California. It further appeared, that at the time of making said contract, and for several years prior thereto, the defendants had been publishing and selling a large quarto work, entitled the “Life of the Yirgin Mary,” and that the “Devotion to the Blessed Yirgin” was added thereto asan appendix, and was sold with it as part of the same work. It also appeared that one of the plaintiffs had himself been engaged in purchasing from the defendants and selling the last mentioned work, including said appendix.

The plaintiffs claimed that by the terms of the above contract they were not only entitled to the exclusive sale of the “ Devotion,” but that the defendants were precluded from appending .it to any other work, and

p. 408

that, therefore, the continued publishing and selling of the “Life of the Virgin Mary,” with the appendix of the “Devotion,” as well as the disposal of a number of copies of the latter work separately, was a breach of said contract, and they accordingly brought an action in this court, in which they claimed the sum of fifty thousand dollars damages.

An attachment was obtained against defendants’ property on the ground that one of them was a nonresident. Under this warrant their property was attached, and they subsequently made a motion to vacate the same before Judge Van Vobst, who referred it to John P. Crosby, Esq., to take the proofs and report.

The referee reported in substance that the plaintiffs had no cause of action, and that the attachment should be vacated. The present motion was thereupon made, to confirm the referee’s report, and to vacate the attachment.

The attachment in this case was issued on the ground that one of the defendants does not reside in this State. The fact of such non-residence is not disputed, and as the affidavit upon which the attachment was obtained in other respects comes up to the requirements of the Code, I do not see how this motion can be granted.

The referee and counsel appear to have acted in this matter upon the assumption that the case was to be tried on its merits, whereas it would seem that a reference was ordered only for the purpose of taking proofs in respect to the facts going to sustain or defeat the attachment. It may be that the referee is correct,. and that no cause of action exists in favor of the plaintiffs against the defendants, but that question cannot be tried in this summary mode, but must be disposed of in the regular way on the trial. Were the rule otherwise, the cause would in effect be tried on its merits on a mere motion to vacate the attachment.

p. 409

Nor do I think that the court has the power to discharge the attachment, upon the defendants giving nominal security, as was claimed by their counsel on the argument. Before they are entitled to an order directing that the attachment be discharged, they must give security in double the amount of plaintiffs’ claim ; or, if the claim be greater than the value of the property attached, they may obtain an order directing that the same be appraised, and then cause to be executed an undertaking in double the amount so appraised {Code, §§ 240, 241). This may prove a hardship in cases where the defendant is unable to furnish the requisite security, and it finally turns out, as is claimed in this case, that no cause of action exists against the defendants; but I see no other way in which the attachment can be discharged before trial and judgment {Code, § 239), inca

case like the present.

Motion denied.