Selser Bros. v. Potter Produce Co. — 87 N.Y. Sup. Ct. 554

Majority

p. 554

Selser Brothers Company, Appellant, v. Potter Produce Company, Defendant; Charles H. Kuske, Respondent.

Headnote

Vacation of an attachment — a new attachment can be obtained without allying for leave — allegation as to counterclaims in a suit by the assignee of a claim.

The court out of which a warrant of attachment is issued lias the power to vacate the same, and if it does so the parties are in the same situation as though no proceedings had been taken.

A second attachment can be obtained upon a proper statement of sufficient new facts, and no leave to make an application therefor is necessary.

In case of a suit by the assignee of a claim it is sufficient on an application for an attachment if the assignee avers that there are no counterclaims to the same to his knowledge.

Appeal by tlie plaintiff, Selser Brothers Company, from an order made at tlie New York Special Term, and entered in the office of the clerk of the county of New York on the 15th day of June, 1894, vacating and setting aside a warrant of attachment granted on the lTth of November, 1893, and adjudging that the alleged lien under one Kuske’s warrant of attachment upon the property attached was not prejudiced by the judgment and execution herein.

JElon H. Hobbs, for the appellant.

J. JJ. Jyemitt, for the respondent.

We see no reason for interfering with the action of the court below. The moving party upon the new papers has obtained an attachment in which the previous defects were obviated. The motion made for the issuing of the new attachment was not a

p. 555

renewal of the old motion, but one based upon a new state of facts. It, therefore, required no leave for its presentation. The court out of which the original process was issued had power to vacate the same, and having so done, the parties were in the same situation as though no such proceedings had been taken.

The objection that there was no sufficient allegation in respect to-counterclaims is not well taken. In case of a suit by the assignee of a claim it is sufficient if such assignee avers that there are no counterclaims to his knowledge, this being the requirement of the Code of Civil Procedure.

The order should be affirmed, with ten dollars costs and . disbursements.

Follett and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.