APPEAL by the defendant, the Pennsylvania Cement Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1911, denying the defendant's motion to vacate a warrant of attachment.
Appeal by the plaintiff, Edwin Hilborn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1911, denying the plaintiff's motion to resettle the order entered herein on the 22d day of March, 1911.
Edgar N. Dollin, for the plaintiff.
L. Laflin Kellogg, for the defendant.
INGRAHAM, P. J.:
There was presented to a justice of the Supreme Court the summons and complaint and an affidavit of one Hilborn, and upon that complaint and affidavit a warrant of attachment was granted under which the sheriff has levied upon certain property of the defendant. Subsequently the defendant appeared in the action, and upon an affidavit of the defendant's president, which stated the issuing of the summons and complaint, the granting of the attachment on March 1, 1911 the appearance on the same day of the defendant; that an undertaking had been given discharging the attachment; that the defendant desires to vacate and set aside said attachment on the ground that the same was irregularly issued and on insufficient papers and that the court was without
jurisdiction to grant the same for the reasons stated in the notice of motion, and that no previous application had been made to set aside the attachment. That motion coming on to be heard, the plaintiff claimed the right to sustain the attachment by additional affidavits and submitted those additional affidavits to the court; that in reply the court said that it would accept the affidavits and determine whether or not they could be read in opposition to the motion to vacate the attachment. Subsequently the court denied the motion to vacate the attachment but at the same time held that the affidavits would not be received, and an order was thereupon entered denying the motion without reciting the tender of the additional affidavits by the plaintiff to support the attachment or containing any reference to them. The plaintiff then made a motion to resettle this order so that the same should recite the papers as read and filed on the motion, which resulted in the order, or that the said order contain a recital that the said affidavits were submitted and tendered by plaintiff upon the hearing of the motion and filed, but that the same were not considered by the court. The court denied this motion to resettle the order and from that order denying the motion to resettle the plaintiff appealed, and the defendant also appealed from the order denying the motion to vacate the attachment, and these appeals were both submitted.
We think the plaintiff was entitled to have the order state the fact that he had submitted these affidavits in opposition to the defendant's motion to vacate the attachment and that the court had refused to receive them; but we think the court below was clearly right in refusing to receive these affidavits or to consider the facts therein stated upon the motion to vacate the attachment. By section 682 of the Code of Civil Procedure the defendant or a person who has acquired a subsequent lien upon his property after it was attached may at any time before the application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action apply to vacate or modify the warrant. And section 683 provides that an application specified in section 682 may be founded only upon the papers upon which the warrant was granted, in which case it must be made to the court, or if the warrant was granted by
a judge out of court to the same judge in court or out of court and with or without notice as he deems proper. Or it may be founded upon proof by affidavit on the part of the defendant; in which case it must be made to the court, or, if the warrant was granted by a judge out of court, to any judge of the court upon notice; and it may be opposed by new proof by affidavit on the part of the plaintiff tending to sustain any ground for the attachment recited in the warrant and no other. Under this section it is only where the motion to vacate the attachment 'be founded upon proof by affidavit on the part of the defendant' that it may be opposed by new proof by affidavit on the part of the plaintiff. This motion was made, as expressly stated, both in the notice of motion and in the affidavit which was annexed to the notice of motion, upon the ground that the attachment was irregularly issued and on insufficient papers and that the court was without jurisdiction to grant the same for the reasons stated in the notice of motion. There was no proof by affidavit or otherwise upon which the motion was made, the affidavit of the defendant's president merely stating the proceedings in the action, and that the motion was made not upon proof, but upon the insufficiency of the papers upon which the attachment was granted. While we think the trial judge should have resettled the order so as to allow it to appear that these affidavits were actually submitted to him, at the same time as we have the papers all before us on this appeal it would be a useless ceremony to reverse the order and require a resettlement when neither the court at Special Term nor this court on the appeal would have the right to receive the affidavits in support of the attachment.
We have then to determine whether the court below correctly denied the motion to vacate the attachment. To entitle the plaintiff to a warrant of attachment he must show by affidavit that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant. (Code Civ. Proc. § 636, subd. 1.) There are two causes of action alleged in the complaint. For a first cause of action plaintiff alleges that on or about October 18, 1910, one Hookey made ...