Betzemann v. Brooks — 38 N.Y. Sup. Ct. 271

Majority

p. 271

JOHN BETZEMANN, Respondent, v. MARY E. BROOKS, Appellant.

Headnote

Attachment — maty be vacated on motion after it has become inoperative by reason of a failure to serve the summons — Code of Civil Procedure, sec. 638.

A motion lies to vacate an attachment which has become inoperative by reason of the failure of the plaintiff to serve the summons within thirty days from the time of the issuing and service of the attachment.

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

Eelly c& MeRae, for tlie appellant.

Edward P. Wilder, for the respondent.

After the attachment was issued, it was served by the officer on ■Susan E. Donahue as the occupant of premises owned by the ■defendant, and also upon the Bank of the Metropolis, where it was reported that she had funds on deposit, but which the officer was informed was not the fact. This service was made on the 26th ■day of June, 1883, but the summons in the action was in no form served until the 26th of July, 1883, which was more than thirty days after the issuing, and of this service, of the attachment. The ■court denied the motion to vacate it, apparently on the ground that it had become inoperative.aud could be of no possible injury to the defendant, but that was not an answer to the motion. Proceedings had been taken under the attachment, and although it had become inoperative by reason of the omission to serve the summons, the ■defendant was still entitled to an order definitely declaring that to

p. 272

be the fact. (Blossom v. Estes, 22 Hun, 472 ; affirmed, 84 N. Y., 614 .)

Under this authority the order made should be reversed, with the usual costs and disbursements, and an order entered vacating the attachment.

Davis, P. J., and Bradt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and attachment vacated.