Bate v. McDowell

Headnote

This was an appeal from an order of General Term affirming an order of Special Term, vacating an attachment.

The mem. of opinion is as follows:

“ The order in this case is not appealable. Neither the order -

of the Special Term nor that of the General Term specifies the ground upon which they were made, and it does not, therefore, appear but that the motion was granted in the exercise of the discretion which the court possessed over the question presented.

“ The order to show cause upon which the motion to vacate was based specifies the insufficiency of the affidavits to entitle the plaintiff to the attachment, as one of the grounds upon which the motion was predicated.

“ There is nothing appearing in the record from which we are authorized to say that this was not the ground upon which the decisions of the courts below proceeded. (Brooks v. Mexican Nat. Construction Co., 93 N. T. 647.) This precise question was determined in Allen v. Meyer (73 id. 1). The motion there proceeded upon the ground that the affidavits were insufficient to entitle the party to his attachment. It was held that this presented a question for the exercise of the discretion of the court as to whether the attachment ought to have been granted upon the papers presented, and that them determination was not reviewable in this court.

“ The appeal should be dismissed.”