Corn Exchange Bank, Respondent, v. Bartolome Martinez Bossio, Appellant

Corn Exchange Bank, Respondent, v. Bartolome Martinez Bossio, Appellant. Attachment—notwithstanding its withdrawal, the defendant is entitled to an order vacating it. Notwithstanding the fact that an attachment has fallen by operation of law, .and has been formally withdrawn, the defendant is entitled to move to vacate the attachment and to enter a formal order of vacation, Appeal by the defendant, Bartolomé Martinez Bossio, from so much of 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 2d day of June, 1896, as denies his motion to vacate a warrant of attachment issued against him on the 7th day ■of December, 1895. Antonio Knauth, for the appellant. John M. Bowers and Latham G. Reed, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : It is conceded that the first attachment, namely, that of December 7, 1895, fell because of the failure to serve the summons as required by law. Upon the 14th day of May, 1896, the defendant ■served papers upon a motion to vacate this attachment, specifying as one of the grounds of the motion that the terms of the order of publication had not been complied with. Upon the 15th day of May, 1896, the plaintiff’s attorneys notified the defendant’s attorneys .and the sheriff that the plaintiff withdrew the attachment. Still later, on May 19, 1896, the sheriff returned the attachment with this indorsement: “ The within attachment has been withdrawn.” The plaintiff now insists that, as the attachment fell by operation of law, and especially in view of its formal withdrawal, the motion to vacate was futile and unnecessary. It is, however, the settled practice not to leave the question of the existence or non-existence of the attachment, under such circumstances, ojien upon the record and dependent upon evidence, but to enter a formal order in accordance with the facts and the legal consequences following thereupon. It was held in Betzemann v. Brooks (31 Hun, 271) that, although the attachment had become inoperative by reason of the omission to serve the summons, yet the defendant was entitled to an order definitely declaring that to be the fact. The order in that case denying the application was accordingly reversed and the attachment vacated. The same practice was adopted in Blossom v. Estes (22 Hun, 472 ; affd., 84 N. Y. 614). Indeed, this question of jurisdiction has, in all the cases, been determined upon motion to vacate. (Taylor v. Troncoso, 76 N. Y. 599 ; Majarrietta v. Saenz, 80 id. 547 ; Catlin v. Rick, 91 id. 668.) The defendant was entitled to a formal order giving legal effect upon the reerods of the court to the plaintiff’s withdrawal. The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the first attachment granted, with ten dollars costs. Present — Barrett, Rumsey, Patterson and Ingraham, JJ. Order reversed, with ten dollars costs and disbursements, and motion to vacate the first attachment granted, with ten dollars costs.