Kirby v. Colwell — 63 N.Y. St. Rep. 134

Majority

p. 134

William W. Kirby, App’lt, v. Charles R. Colwell et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed October 26, 1894.)

Headnote

Attachment—Vacation.

Where, upon a motion to vacate an attachment, the only question presented relates to the existence of plaintiff’s alleged cause of action, it should not, if one of fact and not of law, he decided upon affidavits.

Appeal from an order vacating and setting aside an attachment.

John Sabine Smith for app’lt; Philo P. Safford for resp’ts. ■

This action was brought to recover for alleged services rendered by the plaintiff for the defendants. The defendants were residents of the state of Hew Jersey, and upon that ground an attachment was granted. The motion to vacate the ■attachment was based solely upon the ground that the plaintiff had no cause of action against the defendants, and the affidavits presented to the court in support of that motion denied the making of the contract or the rendition of the services which were the basis of the plaintiff’s claim. The plaintiff read affidavits in sup

p. 135

port of his claim, and upon all the papers the merits of the plaintiff’s claim was seriously in dispute. The learned judge presiding at the special term decided the matter in issue in favor of defendants, and vacated the attachment.

We are of the opinion that when, upon a motion of this character, the only question presented relates to the existence of plaintiff’s alleged cause of action, and is one of fact, and riot of law, it should be left for determination at the trial, and should not be decided upon affidavits. Such is the rule stated in Lowenstein v. Salinger, 42 St. Rep. 414 ; 17 N. Y. Supp. 70 ; Brown v. Wigton, 45 St. Rep. 135 ; 18 N. Y. Supp. 490 ; and Johnson v. Hardwood D. & Trim Co., 79 Hun, 407 ; 61 St. Rep. 502 . In this case there is no dispute as to the non-residence of the defendants, and they have ap- - peared in the action solely for the purpose of moving to vacate the attachment. If that is set aside, the plaintiff will be denied the right of a trial in the courts of his own state, and will be compelled to abandon his suit, or renew it in a foreign jurisdiction. The cause of action set out in his complaint is supported by his own oath and by other competent evidence. Under the laws of the state, he is entitled to a trial by jury, and he should not be deprived of that right unless the facts presented to the court in relation to his claim are undisputed, and the legal conclusion to be drawn therefrom certain.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs.

All concur.