Sanger v. Connor — 88 N.Y.S. 1054

Majority

p. 1054

SANGER v. CONNOR.

(Supreme Court, Appellate Division, First Department.

June 29, 1904.)

Headnote

1. Attachment—Motion to Vacate—Affidavit.

Where the affidavit on which an order to show cause was granted on motion to vacate an attachment failed to state the present condition of the action, and whether at issue, and, if not tried, the time appointed for holding the next term where the action was triable, the objection to the affidavit for failing to comply with Gen. Prac. Rule 37, must be sustained.

Appeal from Special Term, New York County.

Action by Eugene B. Sanger against Welcom Y. Connor. From an order denying a motion to vacate a warrant of attachment, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and LAUGHLIN, JJ.

Jesse Stearns, for appellant.

Joseph M. Baum, for respondent.

The affidavits upon which the order to show cause was granted failed to state, the present condition of the action, and whether at issue, and, if not yet tried, the time appointed for holding the next trial term where the action is triable. Upon the return of the order to show cause, and before the hearing, the plaintiff made a preliminary objection that the moving papers did not comply with rule 37 of the General Rules of Practice, which provides that these matters must be stated. The. objection was good, and should have been sustained. Cole v. Smith, 84 App. Div. 500 , 82 N. Y. Supp. 982 . Apart, therefore, from the merits, which we do not pass upon, we think the motion to vacate the warrant of attachment for failure to comply with the rules of practice was properly denied.

The order appealed from should accordingly be affirmed, with $10 costs and disbursements.