Brown v. Wigton — 45 N.Y. St. Rep. 135

Majority

p. 135

Morris H. Brown, Resp’t, v. Richard B. Wigton et al., App'lts.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Attachment—Vacation.

Where the facts are not undisputed or the legal conclusions certain, a motion to vacate an attachment will not be granted. In such case it is not necessary that plaintiff produce rebutting affidavits; but it is sufficient to defeat the motion that the allegations of the complaint dispute the defendant’s affidavits.

Appeal from order denying motion to vacate warrant of attachment

J. M. Hunt, for app’lts; Strong & Oadwalader, for resp’t

This action was brought to recover for alleged services rendered by the plaintiff to the defendants; and upon the ground of the non-residence of the defendants, an application was made for an attachment against the property of the defendants, which was granted. The defendants thereupon made a motion to vacate the attachment upon the ground that the plaintiff had no cause of action. This motion was denied, and from the order thereupon entered this appeal is taken.

It is urged that as the plaintiff produced no rebutting affidavits, but merely relied upon the allegations of the complaint, and as it was unreasonable to suppose that the defendants would have made the contract alleged in the complaint, that, therefore, the motion should have been granted.

p. 136

We do not see how the court is to try the merits of the action upon an application to vacate an attachment

The rule is well stated in the case of Lowenstein v. Salinger, 42 St. Rep., 414 , that ordinarily the court will not upon motion try questions regarding the cause of ■ action which .should properly be left for determination upon 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.

In the case at bar the allegations of the complaint dispute the affidavits furnished on the part of the defendant, and, therefore, the case is not brought within the rule above stated.

We think that the merits of. the controversy must be left until the trial, the plaintiff, if having a cause of action, being entitled to his attachment as a matter of right

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

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