Majority
p. 343(86 Hun, 266.) KLOH v. NEW YORK FERTILIZER CO. (Supreme Court, General Term, First Department. April 11, 1895.) Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
Headnote
Attachment—Vacating—Specifying Irregularities.Under general rule of practice 37, providing that, when a motion to vacate an attachment is for irregularity, “the notice or order should specify the irregularity complained of,” a motion to vacate is properly denied for failure to specify the irregularity.
Appeal from special term, New York county.
Action by Alphonse Kloh against the New York Fertilizer Company. From an order denying a motion to vacate an attachment made on the papers on which it was granted, defendant appeals.
Affirmed.
Hugh A. McTernan, for appellant.
Robert L. Stanton, for respondent.
The order to show cause did not state the grounds nor the irregularity complained of upon which the motion to vacate the attachment was to be made. Under rule 37 of the general rules of practice it is provided that “when the motion is for irregularity, the notice or order shall specify the irregularity complained of.” In the case of Stevens v. Middleton, 14 N. Y. Wkly. Dig. 126, it was held that “defects in the affidavits used on application for an attachment, which are not specified in a notice of motion to set aside the attachment, cannot be relied upon in support of the motion.” The order should be affirmed, with $10 costs and disbursements.