Lyon v. Blakesly — 26 N.Y. Sup. Ct. 299

Majority

p. 299

SAMUEL A. LYON, Respondent, v. HUBBARD BLAKESLY, Appellant.

Headnote

Attachment — affidavit must state that a certain sum is due “ over and above alt comiter-claims ” — Code of Civil Procedure, section 636, subdivision 1.

An affidavit, used on an application for an attachment, which fails to state that a. certain sum is due to the plaintiff “over and above all counter-claims known. to him,” as required by subdivision 1 of section 636 of the Code of Civil Procedure, is fatally defective, and an attachment granted thereon will be set aside.

Appeal from an order made at Special Term, denying a. motion to vacate an attachment.

The attachment was granted on the summons, complaint and. an affidavit.

Reginald Hart, for the appellant.

L. O. Platt, for the respondent.

By section 635 of the Code o‘f Civil Procedure, an attachment is; authorized against a non-resident defendant in an action for a breach, of contract, express or implied. By section 636, in such an action,, the affidavit must show that the plaintiff is entitled to recover a supi stated therein, “ over and above all counter-claims known to him.”' The affidavit in this case wholly omits, this clause of subdivision 1. of section 636. The omission is fatal to the attachment. A strict', observance of the statute is necessary. The omission of the words.: “ over and above all discounts,” in an affidavit to obtain an attachment from a justice of the peace when the statute required these words, was held fatal. (Kelly v. Archer, 48 Barb., 68 .)

The omitted words were not in section 229 of the Old Code, which corresponds substantially with section 636, as now enacted..

The order refusing to vacate the attachment must be reversed,, with costs and disbursements, and an'order vacating attachment, granted, with costs.

Pratt, J., concurred ; Dykman, J., not sitting.

Order reversed, with costs and disbursements and attachment vacated.