Ladenburgh v. Commercial Bank of Newfoundland — 74 N.Y. St. Rep. 267

Majority

p. 267

Adolph Ladenburgh et al., Pl'ff, v. Commercial Bank of Newfoundland, Def't. George H. Davidson, Junior Attaching Creditor, App'lt.

(Supreme Court, Appellate Division, First Department,

Filed March 20, 1896.)

Headnote

1. Attachment—Vacation.

In order that the moving party can succeed in a motion to vacate a prior attachment, it is necessary for him to show that he has a valid levy upon the property upon which the attachment sought to be set aside has been levied.

2. Same—Service of summons.

In order that the lien of an attachment shall continue, it is necessary that, with thirty days after the granting of the attachment, the summons shall be either personally served upon the defendant or service by publication begun.

Appeal from an order denying a motion by a junior attaching ■creditor to vacate a prior attachment.

J. J. Allen, for app’lt; B. N. Cardozo, for resp’ts.

In order that the moving party can succeed in a motion of this description, it is necessary for him to show that he has a valid levy upon the property upon which the attachment sought to be set aside has been levied. In the case at bar it appears that the attachment of the moving party was issued on the 17th of December, 1895, and that the affidavit upon which the appellant moved to set aside the respondents’ attachment was made on the 5th of February, 1896. More than thirty days had elapsed between the granting of the appellant’s attachment and the making of the affidavit, and such affidavit fails to show that at the time it was made the service of the summons was made personally upon the defendant, or service by publication begun. In order that the lien of an attachment shall continue, it is necessary, under section 638 of the Code, that within thirty days after the granting of such attachment the summons shall be either personally served upon the defendant, or service by publication begun. The provision of the section in question is that a warrant may be granted by a judge of the court, or by any county judge, to accompany the summons, or at any time after the commencement of the action, before final judgment. Personal service of the summons must be made upon the defendant against ■whose property the warrant is granted within thirty days after the granting thereof, or else, before the expiration of the same time, service of the summons by publication must be commenced, or

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service thereof must be made without the state, pursuant to art order obtained therefor as prescribed in this act, and,' if publication has been or is thereafter commenced, the service must-be made complete by the continuance thereof. There being no evidence of a compliance with this section, there is no-proof that the lien of the appellant’s attachment continued ; and consequently he is not in a position to attack the respondents* attachment, even if there should be any defects in his papers or procedure.

The order should be affirmed, with $10 costs and disbursements. All concur.