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Nyack & Gas Light Co. v. Tappen Zee Hotel Co.

2 Silv. Sup. 567 Court Supreme Court, Second Department, General Term, Decision date 1889-06-28 English

Delivered by Pratt, J.

Contents

Majority

p. 567
The Nyack and Warren Gas Light Co., Respondent, v. The Tappen Zee Hotel Co. (Limited), Appellant.
Supreme Court, Second Department, General Term,
June 28, 1889.

Headnote

1. Attachment. Vacation.—An. attachment will be vacated, where the answering affidavits meet and answer fully the case made by the original papers.
2. Same.—So, an attachment, on the ground that defendant is about to remove his property from the state, will he vacated, where the removal was openly made, and the goods were removed from the state, while they were in transit to the city of New York for storage and safekeeping, and the circumstances of suspicion, upon which the attachment was granted, have been satisfactorily explained; but where some apparent grounds existed, it must he done upon condition that no action be brought upon the undertaking.
Appeal from an order denying a motion to vacate an attachment.
A. S. Tompkins, for respondent.
George Wilcox, for appellant.

It may be doubted whether the papers upon which the attachment was granted were sufficient. But if that question be décided in favor of plaintiff, it appears that the answering affidavits of the defendant meet and answer the case made by the original papers.

The person who removed the goods from Nyack to New York avers that he acted openly, showing to all inquirers the written instructions under which he acted.

It appears that if the goods were removed from the state of New York, it was but a temporary absence, while they were in transit through the state of New Jersey to New York for storage and safe-keeping.

The circumstances of suspicion upon which the attachment was granted having been explained, it should be vacated. But as some apparent grounds existed, which,

p. 568
may well have given rise to alarm to creditors, it must be upon condition that no action be brought upon the undertaking. Upon that condition being complied with, order appeal from reversed, and attachment vacated. Üo costs.

All concur.