Bentley v. Goodwin

By the Court.—Ingraham, P. J. We see no reason for reversing the order appealed from. The case of Hall a. Stryker (9 Abbotts’ Pr., 342; S. C., 29 Barb., 105) was made by the general term of the second district; that case-holds that an attaching creditor is not within the class of persons who can impeach the bonafides of a judgment confessed by a debtor to a third person before the attachment was levied. This can only be by a judgment-creditor. The attachment is no evidence of the plaintiff’s claim, or of his right to recover. In the case of a non-resident debtor it is [87] nothing more than the means of commencing the action, and takes the place of the summons. The fact that an attachment was issued on the affidavit of the plaintiff on an ex-parte application, furnishes no greater proof of his being a creditor than the complaint verified by him does. Both state a cause of action on his part, sworn to by him, and yet it is of constant occurrence that in both cases the plaintiff fails. We concur with the general term of the second district in the case referred to. Even if we doubted on that point, we have often said that we considered that the decision of a general term of another district expressly in point, ought to be followed by us, unless we were of the opinion that it was made through some mistake, or was so clearly erroneous, that we should have no hesitation as to the error. Such is not the case here. In addition to the reasons assigned therein, may be added the further ground, that there is uncertainty in all cases commenced by attachment, whether the plaintiff will ever recover a judgment. The uncertainty as to the plaintiff’s rights is of itself sufficient ground to deny such a motion. If granted, and the plaintiff should not recover judgment, injustice would be done to the party having the judgment, and entitled at any rate to the security of the judgment for his debt, as between him and his debtor, even if the statement on which the judgment was confessed, should be defective. The order appealed from should be affirmed. Peokham, J., concurred.