Pedersen Manufacturing Co. v. Walter Automobile Co.

Majority

p. 321

Pedersen Manufacturing Company, Appellant, v. Walter Automobile Company, Respondent.

First Department,

February 21, 1908.

Headnote

Motion and order — affidavits in support of attachment.

When a motion to vacate a warrant of attachment is made upon affidavits the court may consider additional affidavits in support of tlie attachment.

Where such additional affidavits aver positively that the defendant is a foreign corporation and incorporate a telegram from a foreign secretary of state to that effect, and the defendant’s affidavits do not deny thaf .it is a foreign corporation, the attachment should not be vacated.

Appeal by the plaintiff, the Pedersen Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1907, vacating a warrant of attachment theretofore issued herein.

George Whitefield Betts, Jr., of counsel [Hunt, Hill & Betts, attorneys], for the appellant.

Jacob Newman, for the respondent. '

This is an action brought to recover for goods sold and delivered to the defendant, alleged in the complaint to be a corporation organized and existing under the laws of the State of New Jersey. The

p. 322

motion was made upon affidavits to set aside the attachment which had been granted. The c'ourt, therefore, had the right to consider the additional affidavits offeréd and received upon the return of the order to'show cause in support of the attachment, wherein the' fact is positively sworn to that the defendant is a foreign corporation organized and existing under the laws of the State of New Jersey, a telegram from, the- Secretary of State’-of New Jersey to that effect being incorporated therein. This, in view of the argumentative affidavit of defendant’s counsel and the fact that, although the president of the defendant makes an affidavit, he does not deny that the defendant is a foreign corporation, satisfies us that upon these papers the attachment ought not to have been vacated.

The order appealed from should, therefore, he reversed and the attachment reinstated, with ten dollars costs. and disbursements to the appellant, and the motion to vacate the attachment denied, with ten dollars "costs. '

Patterson, P. J., In.graham, Laughlin .and- Houghton, JJ., concurred. .....

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.