Majority
p. 527(80 Hun, 554.) SELSER BROS. CO. v. POTTER PRODUCE CO. (Supreme Court, General Term, First Department October 12, 1894.)
Headnote
1. Attachment—Second Motion on New Papers—Leave to Present.Where an attachment is vacated, and another motion is made on new papers, the second motion is not a renewal of the old one, but is a new motion, based on a new state of facts, and therefore requires no leave for its presentation.
3. Same—Affidavit—Averment as to Counterclaims
An affidavit for attachment, by an assignee, which avers that a certain sum is due “over and above all counterclaims known to deponent” (Code Civ. Proc. § 636, subd. 1), is sufficient
Appeal from special term, New York county.
Action by Selser Bros. Company against Potter Produce Company. Plaintiff obtained an attachment against defendant on November 17, 1893, in the supreme court, and on January 2, 1894, judgment was entered in favor of plaintiff, and an execution issued thereon. On January 5,th one Charles H. Kuske obtained an attachment in the city court of New York against defendant on a claim assigned to him by the Potter Produce Company of Minneapolis, Minn. Said Kuske then, as a junior attaching creditor, moved to vacate plaintiff’s attachment. After having been twice denied, the motion was granted ( 30 N. Y. Supp. 294 ), but the order granting it was reversed ( 28 N. Y. Supp. 428 ) on the ground that the moving papers were insufficient. Said Kuske then renewed his motion on new papers, and it was granted, and from the order granting it plaintiff appeals. Affirmed. The new affidavit of the junior attaching creditors is as follows:
Charles H. ICuske, being duly sworn, deposes and says that he is the plaintiff in the above-entitled action, and is a resident of this state. Deponent further says that the defendant is a foreign corporation, incorporated under the laws of the state of Minnesota, and between September 14, 1893. and October 4, 1893, William H. Slade, Lewis E. Stevens, Albert P. Squires, Charles H. Randall, George L. Ingersoll, Edward C. Sawdey, John F. Callahan, William R. Monroe, and William H. Dille, doing business under the firm name of the Euclid and Lake Shore Grape Union, sold and delivered to the said defendant, the Potter Produce Company, the following goods, at the
p. 528Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
agreed prices hereinafter stated, to wit: On September 15th, 3,040 baskets of grapes, at 14 cents a basket, $425.60; on September 27th, 2,774 baskets of grapes, at 14 cents a basket, $388.26; on October 3d, 2,763 baskets of grapes, at 14 cents a basket, $386.82; making a total of $1,200.78, which was the price the said Potter Produce Company promised and agreed to pay for the said grapes, but never has paid for the same, nor any part thereof; which allegations as to the incorporation of the defendant and the next following allegations are made by this deponent upon information and belief, derived from two affidavits, upon which attachments were issued against this same defendant, both of which affidavits were filed in the office of the clerk of the city and county of New York,—one made by John A. Selser, filed on or about November 17th, 1893, in the action of the Selser Brothers Company against this defendant; the other made by William R. Monroe, filed on or about November 27, 1893, in the action of William H. Slade and others against this defendant,—of which affidavits copies are hereunto annexed, marked, respectively, “A” and “B.” The reason why deponent does not produce affidavits by said Monroe and Selser are as follows: Said Monroe resides in Ohio, and is not now within the state of New York, and deponent is unable to get an affidavit from him in time to procure this attachment. Deponent does not know John A. Selser, nor his place of residence, and there is no one by that name in either of the directories of New York or Brooklyn, and deponent is unable to procure from him an affidavit as to the facts. Deponent further says that the cause of action hereinbefore set forth has been assigned to this deponent, and deponent is now the lawful owner and holder thereof, and was such when this action was begun; and that the said sum of $1,200.78, with interest from October 4, 1893,' is now due and owing this deponent from the said defendant over and above all counterclaims known to deponent. The summons herein has been issued, a prior attachment granted herein has been vacated and set aside by an order entered herein, and no prior application for the present attachment has been made. Deponent further says that the attachment hereinbefore mentioned, granted in the supreme court in favor of William H. Slade and others, has been vacated by an order duly entered therein, and the action by said Slade and others abandoned upon the ground that the supreme court had no jurisdiction to entertain the same. Further deponent saith not.
Elon S. Hobbs, for appellant.
J. B. Leavitt, for respondent.
We see no reason for interfering" with the action of the court below. The moving party, upon the new papers, has obtained an attachment in which the previous defects were obviated. The motion made for the issuing of the new attachment was not a renewal of the old motion, but one based upon a new state of facts. It therefore required no leave for its presentation. The court out of which the original process was issued had power to vacate the same, and, having so done, the parties were in the same situation as though no such proceedings had been taken. The objection that there was no sufficient allegation in respect to counterclaims is not well taken. In case of a suit by the assignee of a claim it is sufficient if such assignee avers that there are no counterclaims to his knowledge, this being the requirement of the Code.[1] The order should be affirmed, with $10 costs and disbursements. All concur.
1 Code Civ. Proc. § 636, subd. 1.