Hale v. Brote — 57 N.Y. St. Rep. 224

Majority

p. 224

Edgar F. Hale et al., App’lts, v. John B. Brote et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed December 12, 1893.)

Headnote

Attachment—Grounds.

An attachment, which states inconsistent grounds for its issue, should be vacated.

Appeal from an order vacating and setting aside an attachment.

Uriah W. Tompkins, for app’lts ; Roger Foster, for resp’ts.

It appears upon the face of,the attachment that it was issued upon the ground that the defendants have disposed of their property, and are about to dispose of their property, with intent to cheat and defraud their creditors. It is manifest that, if the defendants have disposed of their property, they could not be about to dispose of it, and that the plaintiffs have not complied with the provisions of the Code in stating the ground upon which the attachment was issued. It is impossible for us to tell upon which ground the plaintiffs intended to rely, or which ground it is claimed by them their affidavits tended to support. It would seem, therefore, if for no other reason, that this attachment should have been vacated because it did not state the ground upon which it was granted. This is an error which has been committed before, as is evidenced by the qase of Johnson v. Buckel, 65 Hun, 601 ; 48 St. Rep., 924 , and the cases there cited.

The order appealed from should be affirmed, with ten dollars costs and disbursements._