Pitts v. Scribner — 46 N.Y. St. Rep. 726

Majority

p. 726

Thomas Pitts et al., App’lts, v. Philip W. Scribner, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

Attachment—Proof of junior attachment.

On application to vacate an attachment, made hy a junior attaching creditor, proof by affidavit of the issuing of an attachment in the action of the junior creditor by a justice of the supreme court, its levy subsequent to that of the attachment in question, and service of copy attachment, summons, complaint, affidavit and undertaking on defendant, to which is annexed a copy of the attachment containing recitals that a cause of action is shown by the complaint, is sufficient prima faeie to show an interest in or lien upon the property in favor of the moving creditor. The attachment having issued out of a court of general jurisdiction, must be presumed to have been made upon adequate papers.

Appeal from an order of the Erie special term granted December 22, 1891, vacating and setting aside a warrant of attachment in the above entitled action issued October 23, 1891.

The motion was made by the Detroit Lumber Company, a subsequent lienor under an attachment granted October 30, 1891, in an action in favor of the lumber company against the defendant Scribner.

Spencer Clinton, for app’lts; Payne & Dunkleberger, for the Detroit Lumber Company.

The order appealed from was granted upon the application of a junior attaching creditor.

The papers upon which the vacated attachment was issued were concededly insufficient to justify the granting of the attachment.

The appellant contends that the Detroit Lumber Company was not in a position to attack the prior attachment for the reason that its papers, read upon the motion, failed to show that it was a subsequent lienor.

The moving papers consisted of the affidavit of the attorney of the Detroit Lumber Company, setting out the facts of the prior attachment and the levy théreunder; that subsequent to said levy, in an action pending against the defendant Scribner in which the Detroit Company was the plaintiff, a warrant of attachment, a copy of which was annexed to the affidavit, duly signed and granted by Hon. Henry A. Childs, a justice of the supreme court of the state of New York, was duly issued to the sheriff of Erie county. That the sheriff by virtue thereof duly levied upon the same lumber as was levied upon by him under said first attachment; that the copy attachment, summons and complaint, affidavits and undertaking upon which the attachment was issued were duly served upon the defendant; then follows an allegation that said complaint and affidavits were duly verified, and the undertaking duly executed, acknowledged and approved; that the sheriff still had possession of the lumber, and that it has not been applied to payment of any judgment recovered in either of said actions.

There was also the affidavit of a deputy sheriff showing the service of the first attachment and the quantity and value of the

p. 727

lumber attached under the first attachment, the service and levy of the second attachment, by virtue of the attachment issued as aforesaid by Justice Childs.

The attachment is in the ordinary form, containing recitals that it appears by a sworn complaint in the action of the Detroit Lumber Company v. Scribner, presented, that a cause of action for the recovery of money exists against the defendant in favor of said plaintiff for the sum of $16,280.75; then follow allegations justifying the granting of the attachment.

The complaint, affidavits and undertaking referred to were not presented in court upon the motion.

These papers made a prima facie case establishing that the Detroit Company had acquired a lien upon or interest in the lumber attached by the appellant.

The process had issued out of a court of general jurisdiction, and must be presumed to have been issued upon adequate papers and put upon the appellants the burden of showing that the papers were in fact insufficient.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.