Selser Bros. v. Potter Produce Co. — 62 N.Y. St. Rep. 408

Majority

p. 408

Selser Brothers Company, App’lt, v. Potter Produce Company, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 12, 1894.)

Headnote

1. Attachment—Second motion—Leave.

A motion for an attachment on new papers, after the vacation of a former attachment, does not require leave for its presentation.

2. Same—Affidavit—Counterclaim.

An averment in an affidavit for an attachment by an assignee that a certain sum is due “ over and above all counterclaims known to deponent,” is sufficient.

Appeal from an order granting a warrant of attachment.

Hlon S. Hobbs, for app’lt; J. B. Leavitt, for resp’t.

We see no reason for interfering with the action of the court below. The moving party, upon the new papers, has obtained an attachment in which the previous defects were obviated. The motion made for the issuing of the new attachment was not a renewal of the old motioh, but one based upon a new state of facts. It therefore required no leave for its presentation. The court out of which the original process was issued had power to vacate the same, and, having done so, the parties were in .the same situation as though no such proceedings had been taken. The objection that there was no sufficient allegation, in respect to counterclaims is not well taken. In case of a suit by the assignee of a qlaim it is sufficient if such assignee avers that there are no counterclaims to his knowledge, this being the' requirement of the Code. The order should be affirmed, with $10 costs and disbursements. All concur.