Delamanarus v. Chuclos — 98 N.Y.S. 515

Majority

p. 515

(49 Misc. Rep. 636)

DELAMANARUS v. CHUCLOS et al.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

1. Appeal — Review oe Obdep. in Attachment.

Error of a justice of tbe Municipal Court in refusing to vacate a warrant of attachment was not ground for reversal of a judgment against the defendant subsequently rendered in the action.

2. Same.

Neither the provisions for appeals from orders (Municipal Court Act, Laws 1902, pp. 1562, 1563, c. 580, §§ 253-257) nor from judgments (Id. p. 1578, § 310) cover orders in attachment proceedings.

[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, {§ 661-664.]

Appeal fromi Municipal Court, Borough of Manhattan, Second District.

Action by Nicholas Delamanarus against Heralambos, Traparis,

p. 516

and Constantine Chuclos. From a judgment for plaintiff, defendants appeal.

Affirmed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

Maurice L. Rippe, for appellants.

In this case the defendants have appealed from the judgment for the sole purpose of bringing up for review an order denying a motion to Vacate the attachment which the plaintiff had obtained from' a justice of the Municipal Court against their property.

The precise question here presented arose in Rosenthal v. Grouse, 12 Daly, 529 , and in Schnauffer v. Catterbury, 16 Daly, 358 , 10 N. Y. Supp. 543 , where it was held that a warrant of attachment was merely a provisional remedy, not involving the merits of the action, nor the validity of the process by which the defendant was brought into court, and that error of the justice in refusing to vacate it was not ground for reversal of a judgment against the defendant subsequently rendered in the action. The court in the case first cited points out that, if there was no error in the judgment in the court below, there can be no error in the judgment when it is brought into the appellate court for review. No provision of the Municipal Court act is cited, nor can I find any, which authorizes this court to review upon appeal an order of the character in question. Neither the provisions for appeals from orders (Municipal Court Act, Laws 1902, pp. 1562, 1563, c. 580, §§ 253-257) nor from judgments (Id. p. 1578, § 310) cover orders in attachment proceedings. The cases above cited are therefore decisive of the questions involved, and, as no error in the judgment is claimed, it must be affirmed. .

The judgment ¿nust therefore be affirmed, with costs. All concur.