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Owl Cigar Co. v. Ledgerwood

57 N.Y. St. Rep. 648 Court N.Y. City Ct. Decision date 1894-03-09 English

Delivered by Newburger, J.

Contents

Majority

p. 648
The Owl Cigar Company, Resp’t, v. Thomas Ledgerwood, App’lt.
(New York City Court, General Term,
Filed March 9, 1894.)

Headnote

Attachment—Vacation.
An attachment will not he vacated, where the affidavit, on which it was-granted, makes out a prima facie case, unless defendant’s affidavits require its vacation.
Appeal from an order denying a motion to vacate a warrant of attachment.
S. A. Emanuel, for app’lt; Campbell & Murphy, for resp’t.

This is an appeal from an order denying a motion made by defendant to vacate a warrant of attachment. The attachment was granted on the ground that the defendant being an adult and a resident of the city of Mew York keeps himself concealed therein with the intent to avoid service of summons, and that, after proper and diligent effort to ascertain the place of sojourn of the defendant, same cannot be ascertained. It is conceded that the defendant knew he was insolvent, and that he was not to be found either at his store or at his home. The affidavit on which the attachment was granted made out a prima facie case, and the affidavits on the part of the defendant do not show such a state of affairs as would warrant us in vacating the attachment.

The order appealed from must be affirmed with costs.

Van Wyck, P. J., and McCarthy, J., concur.