Wessels v. Boettcher — 58 N.Y. St. Rep. 653

Majority

p. 653

Henry E. Wessels et al., Resp’ts, v. Gustavus Adolphus Boettcher, App’lt.^[1]

(Court of Appeals,

Filed April 17, 1894.)

Headnote

-Stay—Sectioh 779 op Code.

The stay of proceedings, under § 779 of the Code, does not render a subsequent action brought by the assignee and all proceedings therein void, but only irregular. -

Appeal from order of the general term of the supreme court in the first judicial department, made the first Monday of December, 1893, which affirmed conditionally an order of ■special term denying a motion to vacate a warrant of attachment.

The facts, so far as material, are stated in the opinion.

Noah Cornwell Rogers; for app’lt; J. A. Shoudy, for resp’ts.

The plaintiff sued defendant for breach of an express contract, and obtained a warrant of attachment on the ground he was a non-resident. The record discloses that defendant is a resident of the West Indies, and appears in this action specially by attorney for purpose of motion to vacate the attachment. This motion was based on four grounds, viz.:

1. Plaintiffs were stayed by reason of non-payment of motion costs in a former action on the same cause of action.

2. Insufficient affidavit upon which the attachment was •obtained.

3. That no notice was served with the summons, as required by § 433 of the Code of Civil Procedure.

é. That personal service of the summons was not made within thirty days after issuing warrant of attachment.

The special term denied the motion and the general term affirmed this order if plaintiffs paid motion costs in former action within twenty days after service of order, otherwise reversed it.

As to the first ground, it appears that the plaintiffs are the assignees of the claim sued on herein; that their assignors had

p. 654

previously sued thereon and obtained an attachment which was vacated by the court granting it, and the order affirmed in this court, 138 N. Y. 654 ; 53 St. Rep. 931 ; that this action was brought before said motion costs were paid, and while plaintiffs’ assignors were stayed under the provisions of § 779 of the Code of Civil Procedure. The defendant’s counsel insists that the-effect of this stay was to render the present action and all proceedings therein absolutely void, and that the general term had no power to make the conditional .order referred to. The stay of proceedings, under § 779 of the Code, has no such effect and does not deprive the court of jurisdiction when set in motion by the party resting under a stay. The only effect is to render the proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. In this case it was "competent for the general term to deal with the stay of proceedings and its violation in the manner already referred to. The regularity of the attachment was in no way affected by this stay of proceedings and its violation.

As to the second ground alleging insufficiency of affidavit, we . are of opinion that the affidavit sets forth a good cause of action and is sufficient to sustain the warrant of attachment. We have examined the record in the first action brought by plaintiff’s assignors and find that the affidavit in the case at bar cures the defects of the former affidavit.

As to the third ground it appears by the affidavits of Robert M. S.-Putnam and David Gribson that the notice required by §§ 442-3 of the Code was personally served on the defendant without the state. These positive statements under oath override the allegations made on behalf of defendant upon information and belief, and the alleged fact that the notice is not on file with the clerk of the city and county of New York.

As to the fourth ground that the summons was not served within thirty days after warrant of attachment was issued. The attachment was issued July 6, 1893, and David Gribson swears, that on the 25th of July, 1893, atSpanishtown, Island of Jamaica,.British West Indies, he made personal service of the summons on the defendant.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.

Cases cited

Wessels v. Boettcher 138 N. Y. 654 N.Y. 1893-06-20 p. 654