Ives v. Holden

Smith, J.: Section 683 of the Code of Civil Procedure provides for two classes of applications to vacate a warrant of attachment: one founded only upon the papers upon which the warrant was granted; the other. founded upon proof, by affidavit, on the part of the defendant. An application in the latter class may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment recited, in [403] the warrant. In this case the warrant was issued on an affidavit of the plaintiff, as appears by a recital in the warrant. The notice of motion to vacate the warrant, served by the defendants attorney, stated that the motion would be made upon the complaint as well as the affidavit. For aught that appears, the complaint was so used. As it is not set out in the appeal papers, we are not informed of its contents. If it was verified — and for the present purpose that may be assumed — it could be used as an affidavit (Palmer v. Hussey, 59 N. Y., 647), and on its being so used by the defendants, the plaintiff would be entitled to read fresh affidavits in support of the warrant. If it be suggested that by the terms of section 683, the county judge had not jurisdiction to entertain an application founded on affidavits on the part of the defendant, it may be answered that if the construction is correct, a point which we do not intend to decide, the fact of the want of jurisdiction is an additional reason for affirming the order of the judge refusing to vacate the warrant. The order should be affirmed, with ten dollars costs and disbursements. Present — Talcott, P. J., Smith and Hardin, JJ. Order affirmed, with ten dollars costs and disbursements.