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National Broadway Bank v. Barker

3 Silv. Ct. App. 516 Court Court of Appeals, Decision date 1891-06-23 English

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p. 516
The National Broadway Bank in the City of New York, Plaintiff, v. Stephen T. Barker, Defendant.
Court of Appeals,
June 23, 1891.

Headnote

Attachment. Vacation.—On an application by a subsequent attaching creditor to set aside a prior attachment, the supreme court does not commit any legal error in refusing to accept as sufficient an affidavit, presented for the purpose of showing that such creditor had acquired an attachment lien, where the affiant did not have personal knowledge of the facts therein stated.
Appeal from judgment of supreme court, general term, first department, affirming order denying motion to vacate attachment in this action.
P. Q. Eckerson, for appellant.
Wm. F. MacRae, for respondent.

The plaintiff in this action obtained an attachment against the property of the defendant, and the

p. 517
Mattson Rubber Company, a subsequent attaching creditor, made a motion to set the prior attachment aside; and that motion was denied at the special term. The rubber company then appealed to the general term, and there the order of the special term was affirmed.

It appears from the opinion of Judge Daniels at the general term that the order of the special term was affirmed on the ground that the moving papers did not show that the rubber company had acquired any lien by attachment upon the same property seized by the attachment issued in this action. The affidavit upon which the motion was based which was presented to the special term for the purpose of showing that the rubber company had attached the same property seized under the prior attachment, was held to be insufficient, because the affiant did not have personal knowledge of the facts stated therein. Without holding that the supreme court could not in its discretion have accepted the affidavit as sufficient, it did not commit any legal error in refusing to accept it, and in denying the motion upon that ground.

The order should be affirmed, with costs.

All concur, except Finch, J., absent.