Union Distilling Co. v. Ruser — 40 N.Y. St. Rep. 689

Majority

p. 689

The Union Distilling Co., Resp’t, v. Henry Ruser, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

1. Attachment—Service.

A failure to publish or serve the summons within thirty days after the granting of an attachment is fatal to the continuance of such attachment.

3. Same—Appearance.

A special-appearance by the defendant for "the sole purpose of a motion to set aside the attachment is not sufficient to authorize the continuance of the action or of the attachment.

Appeal from order denying motion to vacate attachment ,

L. Ruser, for app’lt; S. E. Duffey, for resp’t.

It appears from the papers upon appeal that ■the attachment herein was issued on the 20th of April, 1891, and that there was no publication of the summons or other service of the same prior to the 21st of May, 1891, more than thirty days after the granting of the attachment " This was fatal to the continuance of the warrant, unless the defendant appeared in the action.

It is claimed by the respondent that the defendant-did appear and moved to vacate the attachment It appears, however, from the papers upon appeal, that the appearance was not gen

p. 690

eral, but special and for the sole purpose of a motion to set aside the attachment

, It therefore gave no authority for the continuation of the action,, nor would it have given any for the entry of judgment in case of failure to answer.

The motion to set aside should have been granted, and the order denying such motion should be reversed, with $10.00 costs and disbursements, and the motion granted.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.