Majority
p. 107Riley v. Skidmore et al. (Supreme Court, General Term, Second Department. July 2, 1889.) Argued before Dykman and Pratt, JJ.
Headnote
1. Attachment—Affidavit.An affidavit in attachment alleging that plaintiffs are entitled to recover a certain sum over “ all counter-claims known to deponent "is not insufficient because not stating that it was “known to plaintiffs. ”
2. Same—Wrongful Attachment.
There is no abuse of process where the property attached is not sufficient to satisfy the execution.
3. Same—Amendment of Bond.
A justice of the peace has authority to allow an amended undertaking in attachment to he filed nunc pro tune.
Appeal from circuit court, Orange county.
E. S. Riley sued Thomas H. Skidmore and Stephen M. Bull for damages by wrongful attachment. The affidavit in the attachment suit alleged that plaintiff was entitled to recover a certain sum above “all counter-claims known to deponent,” but did not state, “known to plaintiff.” The justice allowed plaintiffs to amend their undertaking. Judgment for defendants, and plaintiff appeals.
John Miller, for appellant. G, B. Taylor, for respondents. ■
The affidavit made before the justice stated facts sufficient to call for an exercise of his judicial discretion. That gave him jurisdiction to issue the attachment. There is no evidence of any abuse of the process. The property attached was not enough to satisfy the execution. The permission accorded to the plaintiffs by the justice of the peace to file an amended undertaking nunc pro tune was within his power, and was in furtherance of justice. Judgment affirmed, with costs.