Administrative
Eugene B. Sanger, Respondent, v. Welcom Y. Connor, Appellant
95 A.D. 521·New York Supreme Court, Appellate Division·1904·NY
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Opinion
Eugene B. Sanger, Respondent, v. Welcom Y. Connor, Appellant.
Attachment—not vacated where the moving papers fail to state the matter required by rule 37 of the General Buies of Practice.
A motion to vacate a warrant of attachment should be denied where the moving papers fail to state, as required by rule 37 of the General Rules of Practice, - the present condition of the action, and whether it is at issue, and if not yet tried the time appointed for holding the next Trial Term where the action is triable, where this objection is taken before the hearing of the motion.
Appeal by the defendant, Welcom Y. Connor, 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 23d day of May, 1904, denying the defendant’s motion to vacate a warrant of attachment theretofore granted in the above-entitled action.
Jesse Stearns, for the appellant.
Joseph M. Baum, for the respondent.
[MAJORITY — Per Curiam:]
Per Curiam:
The affidavits upon which the order to show cause was granted failed to state the present condition of the action and whether at issue, and, if not yet tried, the time appointed for holding the next Trial Term where the action is triable. Upon the return of the order to show cause, and before the hearing, the plaintiff made a preliminary objection that the moving papers did not comply with rule 37 of the General Rules of Practice which provides that these matters must be stated. The objection was good and should have been sustained. (Cole v. Smith, 84 App. Div. 500.)
Apart, therefore, from the merits, which we do not pass upon, we think the motion to vacate the warrant of attachment for failure to comply with the rules of practice was properly denied. The -order appealed from should accordingly be affirmed, with ten dollars costs and disbursements.
Present — Van Brunt, P. J., O’Brien, McLaughlin, Hatch and Laughlin, JJ.
Order affirmed, with ten dollars costs and disbursements.