Kirby v. Colwell — 88 N.Y. Sup. Ct. 385

Majority

p. 385

William W. Kirby, Appellant, v. Charles R. Colwell and Another, Respondents.

Headnote

Warrant of attachment — vacation of — the existence of a cause of action should not bexlecided on affidavits.

When, upon a motion to vacate a warrant of attachment granted in an action, the only question presented relates to the existence of the plaintiff’s alleged cause of action, and such question is one of fact and not of law, it should not he decided upon affidavits, hut he left to he determined at the trial, and the attachment should not he vacated.

p. 386

Appeal by tbe plaintiff, William W. Kirby, from an order of tbe Supreme Court, made at tbe Kings County Special Term and entered in tbe office of tbe clerk of tbe county of Kings on tbe 4th day of June, 1894, granting tbe defendants’ motion to vacate and set aside a warrant of attachment granted against tbe property of tbe defendants.

John Sabine Smith, for tbe appellant.

Philo P. Safford, for tbe respondents.

Tbis action was brought to recover for alleged services rendered by tbe plaintiff for tbe defendants.

Tbe defendants were residents of the.State of New Jersey, and, upon that ground, an attachment was granted.

Tbe motion to vacate the attachment was based solely upon the ground that the plaintiff bad no cause of action against tbe defendants, and tbe affidavits presented to tbe court in support of that motion denied tbe making of tbe contract or tbe rendition of tbe services which were tbe basis of the plaintiff’s claim.

Tbe plaintiff read affidavits in support of bis claim, and upon all tbe papers tbe merits of tbe plaintiff’s claim was seriously in dispute.

The learned judge presiding at the Special Term decided the matter in issue in favor of tbe defendants and vacated tbe attachments.

We are of opinion that when, upon a motion of tbis character, tbe only question presented relates to tbe existence of a plaintiff’s alleged cause of action, and is one of fact and not of law, it should be left for determination at tbe trial, and should not be decided upon affidavits.

Such is tbe rule stated in Lowenstein v. Salinger ( 42 N. Y. St. Repr. 414 ); Brown v. Wigton ( 18 N. Y. Supp. 490 ); Johnson v. Hardwood Door, etc., Co. ( 79 Hun, 407 ).

In this case there is no dispute as to tbe non-residence of tbe defendants, and they have appeared in the action solely for tbe purpose of moving to vacate the attachment.

If that is set aside the plaintiff will be denied tbe right of a trial in tbe courts of bis own State, and will be compelled to abandon his

p. 387

suit or renew it in a foreign jurisdiction. The cause of action set out in his complaint is 'Supported by his own oath and by other competent evidence. Under the laws of the State he is entitled to a trial by jury, and he should not be deprived of that right unless the facts presented to the court in relation to his claim are undisputed and the legal conclusion to be drawn therefrom certain.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Oykman and Cullen, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.