Corn Exchange Bank v. Bossio

It is conceded that the first attachment, namely, that of December 7, 1895, fell because, of the failure to serve the summons as required by law. Upon the 13th day of May, 1896, the defendant served papers upon a motion to vacate this attachment, specifying as one of the grounds of the motion that the terms of the order of publication had not been complied with. Upon the 15th day of May, 1896, the plaintiff’s attorneys notified the defendant’s attorneys and the sheriff that the plaintiff withdrew the attachment. Still later, namely, May 19th, 1896, the sheriff returned the attachment with this indorsement: uThe within attachment has been withdrawn.’’ The plaintiff now insists that, as fhe attachment fell by operation of law, and especially in vieiv of its formal withdrawal, the motion to vacate was futile and unnecessary. It is, however, the settled practice not to leave the question of the existence or nonexistence of the attachment under such circumstances open upon the record, and dependent upon evidence, but to enter a formal order in accordance with the facts and the legal consequences following thereupon. It was held in Betzmann v. Brooks, 31 Hun, 271 , that, although the attachment had become inoperative by reason of the omission to serve the summons, yet the defendant was entitled to an order definitely declaring that to be the fact. The order in that case denying the application was accordingly reversed, and the attachment vacated. The same practice was .adopted in Blossom v. Estes, 22 Hun, 472 , affirmed 84 N. Y. 614 , Indeed, this question of jurisdiction has in all the cases been determined upon motion to vacate. Taylor v. Troncoso, 76 N. Y. 599 ; Mojarrieta v. Saenz, 80 N. Y. 549 ; Gatlin v. Ricketts, 91

The order should be reversed, with $10 costs and disbursements, and the motion to vacate the first attachment granted, with $10 costs.