Majority
p. 82(88 App. Div. 603.) VAN WICKLE v. WEAVER COAL & COKE CO. (Supreme Court, Appellate Division, First Department. December 11, 1903.) Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.
Headnote
1. Attachment—Vacation for Irregularities—Notice.Rule 37, Gen. Rules of Prac., providing that when a motion to vacate an order is for irregularity the notice shall specify the irregularity complained of, is not satisfied by a notice simply stating that, on papers named, defendant will apply for an order vacating an attachment.
f 1. See Attachment, vol. 5, Cent. Dig. §§ 840, 845.
Appeal from Special Term, New York County.
Action by Daniel E. Van Wickle against the Weaver Coal & Coke Company. From an order denying a motion to vacate a warrant of attachment, defendant appeals.
Affirmed.
Joseph A. Arnold, for appellant.
Gordan Gordan, for respondent.
The defendant appeals from an order denying a motion to vacate a warrant of attachment. The motion to vacate was based upon the papers upon which the order for the attachment was made. It is urged that the order appealed from should be reversed and the warrant vacated, by reason of certain irregularities in the moving papers, as well as in the warrant itself. The notice of motion did not state any grounds of irregularities, and
p. 83
this was a sufficient reason for the denial of the motion. Rule 37 of the general rules of practice provides: “When the motion is for irregularity, the notice or order shall specify the irregularity complained of.” This notice simply stated that upon papers named, and at a time and place specified, the defendant would apply to the court “for an order vacating said attachment.” This did not comply with the rule referred to (Wheeler v. Brady, 2 Hun, 347 ; Kloh v. New York Fertilizer Co., 86 Hun, 266 , 33 N. Y. Supp. 343 ; German American Bank v. Dorthy, 39 App. Div. 166 , 57 N. Y. Supp. 172 ).
The order appealed from, therefore, must be affirmed, with $10 costs and disbursements. All concur.
Cases cited
- German-American Bank v. Dorthy 39 App. Div. 166 p. 83