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HOTCHNER v. BARRYMORE

March 5, 1940

HOTCHNER et al.
v.
BARRYMORE



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Motion for an order vacating a warrant of attachment.

This action is upon a written express contract, for the defendant's alleged breach of which the plaintiffs seek to recover judgment.

 The cause was begun in the Supreme Court of this State (the venue being laid in the County of Queens), a copy of the Summons and complaint having been accepted on January 29, 1940, at the office of the defendant's attorneys in lieu of personal service; on the next day notice of appearance was duly served.

 On or about February 6th, a warrant of attachment was duly issued by Mr. Justice Hallinan, of that court, to the Sheriff of the County of New York, and levy was made upon a certain indebtedness to the defendant on the part of M.D.C. Corporation.

 The attachment was sought on the ground that the defendant is a non-resident of the State of New York and is a resident of the State of California. This the petition for removal establishes.

 The removal proceedings were perfected on or about February 23, 1940, and the case is now in this court.

 An order to show cause to vacate the attachment was duly issued and made returnable on February 28th, and the motion seeks, in the alternative, that if the warrant be not vacated, it be reduced from the amount therein stated to constitute the claim of the plaintiffs, namely, $9,200, "to an extent commensurate with the reasonable value of the legal services actually rendered by plaintiffs to me"; the defendant further asks "that plaintiffs be required to file additional security which shall be proportionate to whatever amount this court shall determine the attachment is valid".

 The first ground of challenge, according to defendant's affidavit of February 23, 1940, is that the papers upon which the writ was granted are insufficient, in that while it is asserted, in the complaint and the affidavit upon which the warrant was granted, that the agreement of hiring, which is the basis of the plaintiffs' claim, appears to be an "alleged written agreement", no copy thereof is attached to either the complaint or the said affidavit.

 Before passing upon the validity of that objection, it should be stated that the answering affidavit of the plaintiffs convincingly demonstrates that so much of the defendant's affidavit is disingenuous for the following reasons:

 A. There was a prior action brought by these plaintiffs against this defendant upon that written agreement, in the courts of Illinois, and a copy thereof was made a part of the pleadings in that cause; the defendant filed answer and insisted upon a jury trial, thus delaying the plaintiffs' day in court, with the result that the action was discontinued without costs to either party, and the instant suit was instituted as soon as the defendant became subject to the jurisdiction of the New York courts. Thus it appears that the defendant knows exactly what the contract is, and could therefore have denied its existence, or alleged that under its terms the plaintiffs are not entitled to recover, had he deemed such averments to be in accord with the facts.

 B. It is stated in said answering affidavit, and not denied by the defendant, that, when the attachment was sought in the Supreme Court and a copy of the written contract was submitted to Mr. Justice Hallinan, he directed the plaintiffs not to incorporate the document in their papers, in order to spare the defendant the embarrassment which might result to him from a disclosure of the terms thereof, and the plaintiffs were directed to frame their attachment papers so as to reveal the essential elements of the contract only; in deference to that direction the complaint and attachment affidavit were executed and filed in the form now under scrutiny.

 No motion was made in the Supreme Court to vacate the attachment, and that fact is relied upon by the plaintiffs to sustain their contention that this court is presently without jurisdiction to entertain the motion.

 The argument is opposed to what was said in the following cases: Paragon Coal & Coke Co. v. J.W. Kirby & Sons Coal Co., D.C., 9 F.2d 686; Dicks-David Co. v. Edward Maurer Co., D.C., 279 F. 281; ...


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