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Everitt v. Everitt Manufacturing Co.

33 N.Y. St. Rep. 996 Court N.Y. Gen. Term Decision date 1890-10-24 English

Delivered by Yan Brunt, P. J.

Contents

Majority

p. 996
Percival Everitt, Resp’t, v. The Everitt Manufacturing Co. Isaac F. Denzi and John K. Phillips, App’lts.
(Supreme Court, General Term, First Department,
Filed October 24, 1890.)

Headnote

1. Attachment—Motion to vacate by junior attaching creditor. ,
To sustain an application by junior attaching creditors to vacate a prior attachment, it is necessary to establish by legal evidence a subsequent valid levy under their attachment upon the same property that the prior attachment was levied upon.
2. Same.
The opinion of their attorney, although expressed in an affidavit, that such subseqi .ent lien has been secured, is not sufficient.
Appeal from order denying motion of junior attaching creditors to set aside plaintiff’s attachment
Arthur R. Robertson, for app’lts; John C. Coleman, for resp’t

The language of the court in the case of Tim v. Smith, 93 N. Y., 87 , is singularly applicable to the affidavits in question herein, and shows that the motion was correctly decided below.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.