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Appleton v. Speer

57 N.Y. Super. Ct. 119 25 Jones & S. 119 Court N.Y. Super. Ct. Decision date 1889-06-28 English

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p. 119
DANIEL F. APPLETON, Appellant, v. JAMES G. SPEER, et. al., Respondents.

Headnote

Order of attachment, vacation of.
On amotion to vacate an order of attachment, made upon the original papers upon which the attachment was granted, the plaintiff has no right to present additional affidavits to remedy any alleged defects in the original papers. If the latter were defective the attachment should be vacated.
Before Sedgwick, Ch. J., Freedman and Truax, JJ.
Decided June 28, 1889.
Appeal from an order vacating an order of attachment.
Abbett & Fuller, attorneys, and Henry Schmitt, of counsel, for appellant.
Morse & Haynes, attorneys, and Waldo G-. Morse, and David A. Haynes, of counsel,' for respondents.

From the original papers, taken together, on which the order of attachment was issued, it appeared that some facts, the existence of which it was necessary to prove, were sworn to upon information and belief and the sources of the information not disclosed. For this reason the court below was correct in granting the motion to vacate the order. The original defect could not be remedied by proving by other affidavits produced upon the motion to vacate, that the facts referred to really existed, and the more is this true, because the motion to vacate was made upon the original papers when the plaintiff has no right topre

p. 120
sent additional papers. Steuben Co. Bank v. Alberger, 75 N. Y. 179 .

The order should be affirmed with $10 costs.

Freedman, J., concurred.

The order should be affirmed for the reasons assigned by the chief judge. See Cribben v. Schillinger, 30 Hun, 248 ; Marine Nat. Bank v. Ward, 35 Ib. 395 ; Buhl v. Buhl, 41 Ib. 61 ; Lee v. Co-operative, &c., 19 N. Y. St. Rep. 879 .

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