p. 137Henry L. Gwalter, Resp’t, v. The New York Seal Plush & Tapestry Co., App’lt.(Supreme Court, General Term, First Department,Headnote
Attachment—Motion to vacate—FraudOn motion to vacate an attachment granted in an action for goods sold and delivered upon affidavits tending to show that the goods were sold on a credit which had not expired, the answering affidavits charged and tended to prove fraud in the original sale. Held, that the court properly refused to vacate the attachment and remitted the questions of fact to the trial of the action.
Appeal from an order denying motion to vacate attachment
D. D. Sherman, for app’lt; J. L. Bishop, for resp’t.
The attachment was properly granted upon an affidavit disclosing a sufficient cause of action for goods sold and delivered, and showing that the defendant is a foreign corporation. The motion to vacate was based upon affidavits tending to show that the goods were sold upon a credit which had not expired at the time of the commencement of the action. The plaintiff met these affidavits by affidavits charging and tending to prove fraud in the original sale.
It seems to us quite clear that the question of fact thus presented was properly remitted. to the trial of the action; and that the court correctly decided that the attachment should not be disturbed.
The defendant is in error in supposing that it was necéssary for the plaintiff to set forth in his affidavit, or even in his complaint, the credit in question, and to allege, as a basis for rescission, fraud in the original contract of sale.
It is well settled in this state that the plaintiff, under such circumstances, may rescind the credit and sue at once for the value of the goods, leaving the question of fraud to be determined upon
p. 138the trial, should the defendant set up the credit in his answer. If the credit be thus set up,, the plaintiff upon the trial may properly rest upon proof of the sale and delivery of the goods. The defendant may then prove an unexpired credit; and, at that stage, the plaintiff by way of rebuttal may prove the fraud. The affidavits read in opposition to the present motion make out a case of fraud amply sufficient to warrant the presentation of that ques tian to a jury. It is quite clear that what may thus properly be presented at the trial and there submitted for the determination of a jury should not now be ignored, nor should the verdict of the jury thereon be forestalled upon a mere preliminary motion of this character,
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., O'Brien and Barrett, JJ., concur,