Haebler v. Bernharth — 31 N.Y. St. Rep. 407

Majority

p. 407

Theodore Haebler and Oscar Faehrmann, Resp'ts, v. Johh G. Bernharth et al., App’lts.

(New York Superior Court, General Term,

Filed May 5, 1890.)

Headnote

Attachment—Motion to vacate—Akbtdavtts.

It is not substantial error for the court, upon a motion to vacate an attachment on the papers on which it was granted, to allow the plaintiffs to read opposing affidavits as to occurrences in the action since the granting of the attachment, where defendants delay making the motion for eighteen months or more.

Appeal from order denying motion to vacate attachment.

Coudert Bros., for app’lts; Marshall P. Stafford, for resp’ts.

The warrant of attachment in this case was granted by the court on April 5, 1888.

An order to show cause why the attachment should not be vacated on the papers upon which the same was granted was made on November 10, 1889.

The motion on the order tó show cause was denied by the judge at special term, and from that decision the defendants appeal, on the ground that the court allowed the plaintiffs to submit an affidavit in opposition to the defendants’ motion to vacate the warrant made on November, 1869 ; that the court had not power to-receive and consider said,affidavit on defendants’ motion to vacate; that plaintiffs had been guilty of loches• in offering said affidavit, setting forth that the plaintiffs had obtained a judgment against the defendants by default; that the money held by the sheriff on the plaintiffs’ attachment had been by some indirection applied to payment' of. a judgment of another creditor of the.parties defendant, and an action against such creditor, for restitution of such money is now pending. ■' • " ■

■■ The delay of defendants in moving to.vacate the attachment is loches, which did not seem entitled to much favor from the court before which the motion to, vacate was made. • . <

. The permission of the court to- the plaintiffs’ counsel to read affidavits as to occurrences in the action since the .granting of the attachment was not substantial-error. 1 ’ -

. The affidavit on which the -warrant of attachment was granted discloses.facts sufficient to-warrant the order: Haebler v. Bernharth, 115 N Y., 459 , 462 ; 26 N. Y. State Rep., 230.

p. 408

The remedy by attachment is summary and should not be hampered and frustrated by unnecessary technicality, although all proper precautions should be taken to protect a defendant against imposition or oppression.

The order appealed from should be affirmed, with costs.

Sedgwioic, Oh. J., and Freedman, J., concur.