Goodyear v. Commercial Fire Insurance — 68 N.Y.S. 756

Majority

p. 756

GOODYEAR et al. v. COMMERCIAL FIRE INS. CO.

(Supreme Court, Appellate Division, First Department.

February 25, 1901.)

Headnote

Attachment-Motion to Vacate—Determination.

On a motion to vacate an attachment, the merits of the action will not usually be considered, and, unless it is certain that the complaint is so defective that plaintiff cannot recover, the motion will be denied, and the writ continued until the case is ended.

Appeal from special term, New York county.

. Attachment by Frank H. Goodyear and others against the Commercial Fire Insurance Company. From an order vacating the attachment, plaintiffs appeal.

Reversed, and motion denied.

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHUN, O’BRIEN, and INGRAHAM, JJ.

Isaac L. Miller, for appellants.

Clifford W. Hartridge, for respondent.

This motion was granted, and the writ of attachment vacated, upon the ground that the action was prematurely brought. Upon motions for relief of this kind, the merits of the action will not usually be considered, and, unless it is certain that the complaint is so defective that the plaintiffs cannot recover in the action, the motion will be denied, and the writ of attachment continued until the final determination of the action. Furbush v. Nye, 17 App. Div. 325 , 45 N. Y. Supp. 214 ; Investment Co. v. Moore, 35 App. Div. 421 , 54 N. Y. Supp. 787 . The application of this rule requires that this order should be reversed, and the motion to vacate the attachment denied.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.

Cases cited

Furbush v. Nye 17 App. Div. 325 N.Y. App. Div. 1897-05-07 p. 756