Stoiber v. Thudium — 8 N.Y. St. Rep. 436

Majority

p. 436

Adolphus H. Stoiber, App'lt, v. Robert C. Thudium, et al., Resp'ts.

(Supreme Court, General Term, First Department,

Filed March 31, 1887.)

Headnote

Attachment—Warrant of—Summons—Code Civ. Pro., § 638.

Tile affidavit upon which a warrant of attachment was granted stated “ that the plaintiff is about to commence an action against the defendant for the cause above stated by issuing the summons hereto annexed." Held, that this was a sufficient compliance with Code Civ. Pro., § 638, the summons being one of the papers upon which the application for the warrant was made.

Appeal by junior attaching creditors from order denying motion to vacate warrant of attachment.

D. C. Briggs, for app’lt; F. H. Smith, for resp’t.

The motion was made upon the ground that it appeared on the face of the affidavit on which the warrant was granted, that at the time the application was made for the warrant this action had not been commenced on the summons served or issued for service. In the affidavit presented to the judge who granted the attachment* it was stated “that the plaintiff is about to commence an action against the defendant for the cause above stated by issuing the summons hereto annexed, and no previous "application for an attachment has been made herein.”

It appears therefore that a summons was made out and accompanied the affidavit by being annexed to it. This is undoubtedly a sufficient compliance with section 638 of the Code, in the broadest view that can be taken in favor of the appellant’s motion.

The cases of Mills v. Corbet ( 8 How., 500 ) and Blossom v. Estes ( 84 N. Y., 614 ), cited on behalf of the appellant, so far as they affect this case, favor the propriety of the disposition made of the appellant’s motion.

It is not necessary to make any extended review, however, of any of the cases, or of the section of the Code under which the attachment was issued, for the reason that the question is substantially disposed of in this department in the case of Pickhardt v. Antony ( 27 Hun, 269 ), in which it was held upon consideration of the various sections of the Code affecting the question, that it need not

p. 437

appear upon the affidavits used upon the attachment that an action has been commenced or that a summons has been served, and that decision was founded upon the proposition that section 636 did not require a statement that an action had been commenced, but simply that one of the causes of action specified in section 635 existed, and that the plaintiff after obtaining the attachment had thirty days in which to serve the summons. Therefore the omission to refer to that process in the papers upon which the application for an attachment rested, was not any evidence that the summons had not issued.

Here the statement was positive that the summons was issued when the application was made for an attachment, because it formed a part of the papers upon which the application was made.

There can be no doubt that the order from which the appeal was taken was right, and it should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.