Binder v. Kessler

Order affirmed, with ten dollars costs and disbursements, on authority of Moffatt v. Fulton (132 N. Y. 507); Spiegel v. Levine (161 App. Div. 764) and All-Package G. Stores Co., Inc., v. McAtamney (174 id. 778). The motion to vacate the order of arrest was properly made to the Special Term. The order recites that it was granted upon affidavits. The motion to vacate was made not only upon the affidavits but upon the complaint. It was, therefore, not made wholly upon the papers upon which the order was granted; and in such case it was properly made to the court. Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ., concurred.