Feiber v. Smith — 6 N.Y.S. 446

Majority

p. 446

Feiber v. Smith et al.

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

1. Attachment—Action on Bond—Answer.

In an action for a wrongful attachment, a defense that at the time of the assignment of the claim for damages by the attachment debtor to plaintiff the assignor was insolvent; that the assignment was in fraud of creditors, and without consideration ; and that plaintiff had no right or title to or interest in the cause of action or the undertaking; that the order vacating the writ of attachment was duly appealed from; and that the appeal was still in full force, undetermined; that the property upon which the writ of attachment was levied was claimed by a third party, and the claim admitted by plaintiff’s assignor, and that thereby both he and plaintiff were estopped from recovering in the action,—is insufficient.

2. Same—Appeal from Vacating Order—Stay.

A defense that an appeal has been taken from an order vacating the attachment, which is still undetermined, must, in order to be good, allege that a stay of proceedings has been ordered, or such other facts in connection with it as legally accomplish that result.

Appeal from special term, Hew York county.

Assumpsit by Joseph Feiber against William Smith and William W. Brown, upon an undertaking given by them upon the issuance of a writ of attachment against one Thomas McGrath by George T. Matthews. The writ was afterwards vacated, and said McGrath assigned and transferred bis claim for damages on the undertaking to plaintiff. Defendants answered, setting up four separate defenses. The demurrer was sustained at special term, and judgment entered thereon. Defendants appeal.

Argued before Van Brunt, P. J., and Daniels and Brady, JJ.

B. C. Chetwood, for appellants. Goldfogle <& Cohn, for respondent.

This action was based upon an undertaking given on procuring an attachment which was vacated. The necessary allegations were made in the complaint to enable the plaintiff to recover. The defenses demurred to are as follows: “And for a further answer to the said complaint the defendants show that at the time of said alleged assignment the said Thomas Mc-Grath was insolvent, and they allege and charge that the said alleged assignment was in fraud of his creditors, without consideration, invalid, and void; and therefore they deny that this plaintiff has any right or title to or interest in said chose in action (if any) set out in said complaint, or in said undertaking. For a third defense herein: (3) And for a further defense these defendants show that the order vacating said attachment referred to in said complaint was duly appealed from on the0 20th day of June, 1887, which appeal still remains in full force and undetermined. For a fourth defense herein: (4) And for a further defense herein defendants show that upon service of said attachment the said goods attached were claimed to be the property of one Thomas B. Dunne, and admitted so to be by said Thomas McGrath; wherefore defendants aver that said McGrath and his assignee, the plaintiff, are estopped from recovering damages in this action. Wherefore defendants demand that the complaint herein be dismissed, with costs'. ” They were each demurred to upon the ground that each was insufficient in law upon its face, and that the matters therein contained did not constitute a defense to this action.

The demurrer was properly sustained. The pleading demurred to did not present any sufficient answer in either of these three defenses. The only

p. 447

one, indeed, at all suggestive of a proper response is that averring an appeal from the order vacating the attachment, and that was incomplete, because it did not allege that a stay of proceedings had been ordered, or such other facts and circumstances in connection with it as legally accomplished that result. This action is one provided by statute, and is entitled to all the advantages which courts in the administration of justice can confer. The process of attachment is too frequently resorted to either carelessly or without sufficient facts to justify its issuance, and it frequently causes great disaster to the defendant,—more injury, indeed, than the rule of damages is broad enough to cover. The right to prosecute is absolute, and the court has no power to recognize sympathetic defenses; they must be legal. The judgment appealed from must for these reasons be affirmed, with costs. All concur.