Dayton v. McElwee Manufacturing Co. — 46 N.Y. St. Rep. 139

Majority

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Henry W. Dayton, Resp’t, v. The McElwee Manufacturing Co., App’lt (two cases).

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Attachment—Creditors moving to vacate must show regularity op THEIR OWN PROCEEDING.

A junior attaching creditor who seeks to destroy the lien of a prior attachment because of jurisdictional defects must. show that every step in his own procedure was sufficient to confer jurisdiction, and should, therefore, present the papers upon which his own attachment was granted, and prove that such attachment was actually levied on the property covered by the prior attachment.

Appeal from an order denying motion to vacate warrant of .attachment.

T. W. Foster, for app’lt; Kneeland, Stewart & Epstein, for resp’t.

We agree with the special term that there is no substantial distinction between these cases and that of Tim v. Smith, 3 Civ. Pro., 347. In the latter case, a copy of the warrant of attachment was not appended to the papers', but the attorney made an affidavit with regard to its existence. Here the attorney has made a similar affidavit, and has, in addition, furnished a copy of the warrant But the court held, in the case cited, that the junior attaching creditor was bound, when he moved to vacate •the prior attachment, to show that his warrant was granted upon papers sufficient to confer jurisdiction; in other words, that both parties should, on the motion to vacate, occupy the same position with regard to the papers upon which their warrants were respectively granted, and that the attacking party should disclose his own position as well as that of his adversary. This case of Tim v. Smith was affirmed by the court of appeals, 93 N. Y., 87 , and it has since been repeatedly followed.

We think that the present motions come within the principle there enunciated. A junior attaching creditor, who seeks to destroy the lien of a prior attachment, because of jurisdictional defects, should come into court upon papers showing that every step in his own procedure was sufficient to confer jurisdiction. He should therefore present the papers upon which his attachment was granted, and prove that such attachment was actually levied upon the property covered by the prior attachment. It is only when these facts are made to appear that he shows himself to be “ a person who has acquired a lien upon or interest in the defendant’s property,” within the meaning of § 682 of the Code of Civil Procedure. What is there meant is, of course, a valid lien; i. e., a lien resulting from the existence of all the necessary jurisdictional facts. Upon both principle and authority, it is reasonable to require the moving party to present such jurisdictional facts as a pre-requisite to his attack upon the prior attachment. The plaintiff in the prior attachment should not be called upon to look up the papers upon which the junior attachment was granted, and to present them in opposition to the motion to va

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cate, lor the reason that he makes no affirmative attack upon such junior attachment. He merely defends himself against it, and he should therefore have the opportunity of showing its inherent weakness upon the face of his adversary’s motion papers.

The order should be affirmed, with costs.

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