Sterns Paper Co. v. Johnson

Per Curiam. The ground upon which it is sought to vacate the attachment is that, according to the affidavit of the defendant, there is no such debt due as is claimed in the complaint. This is a question which can only be disposed of upon the trial, and cannot be considered here, as the facts are not undisputed, nor are the legal conclusions certain. The circumstances under which an attachment will be set aside because of defects in the cause of action are stated by this court in the case of Lowenstein v. Salinger, (Sup.) 17 N. Y. Supp.. 70, in which it was held that ordinarily the court will not upon motion try questions regarding the cause of action which should properly be left for determination on the trial. Where, however, the facts are undisputed, and the legal conclusions certain, it would be oppressive to hold an attachment which is clearly without foundation. The same principle is reaffirmed in the case of Brown v. Wigton, 18 N. Y. Supp. 490, (decided herewith.) The appellant has failed to bring himself within this rule. We think, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.