Majority
p. 266Alphonse Kloh, Respondent, v. New York Fertilizer Company, Appellant, Impleaded with Another.
Headnote
Vacation of an attachment for irregularity — • the irregularities should be specified in the notice of motion.Defects in tlie affidavits, used on an application for an attachment, which are not specified in the notice of motion to set aside the attachment, or in an order to. show cause why such attachment should not he set aside, cannot he relied upon in support of the motion for that purpose.
Appeal by the defendant,' the New York Fertilizer Company, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1895, denying the motion of said defendant to vacate a warrant of attachment.
Hugh A. McTerncm, for the appellant.
Robert L. /Stcmton, for the respondent.
The order to show cause did not state the grounds nor the irregularity complained of upon which the motion to vacate the attachment was to be made. Under rule 31 of the General Rules of Practice it is provided that “ when the motion is for irregularity
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the notice or order shall specify the irregularity complained of.” In the case of Stevens v. Middleton (14 N. Y. Wkly. Dig. 126) it was held that “ defects in the affidavits used on application for an attachment which are not specified in a notice of motion to set aside the attachment cannot be relied upon in support of the motion.” The order should be affirmed, with ten dollars costs and disbursements.
Present — Yan Brunt, P. J., O’Brien and Follett, JJ.
Order affirmed, with ten dollars costs and disbursements.