Sterns Paper Co. v. Johnson — 44 N.Y. St. Rep. 916

Majority

p. 916

The Sterns Paper Co., Resp’t, v. Joseph Y. Johnson et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Attachment—Vacation.

An attachment will not he vacated on motion where the facts are not undisputed, nor the legal conclusions certain.

Appeal from order denying motion to vacate attachment.

R. G. Taylor, for app’lts; G. R. Hotchkiss, for resp’t

The ground upon which it is sought to vacate the attachment is that according to the affidavit of the defendant there is no such debt due as is claimed in the complaint. This is a question which can only be disposed of upon the trial, and cannot be considered here, as the facts are not undisputed, nor are the legal conclusions certain.

The circumstances under which an attachment will be set aside because of defects in the cause of action are stated by this court in the case of Lowenstein v. Salinger, 42 St. Rep., 414 , in which it was held that ordinarily the court will not upon motion try questions regarding the cause of action which should properly be left for determination on the trial. Where, however, the facts are undisputed, and the legal conclusions certain, it would be oppressive to hold an attachment which is clearly without foundation.

The same principle is reaffirmed in the case of Brown v. Wigton, decided herewith.

The appellant has failed to bring himself within this rule.

p. 917

We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.