Conklin & Conklin v. Dutcher
New York Supreme Court
This is an appeal from an order made at a special' term denying defendant’s motion to set aside an attachment, issued pursuant to sections 227, 8 and 9 of the Code. The motion was founded on several distinct grounds. 1st. That the affidavit was insufficient. 2d. If sufficient, then the defendant offered his opposing affidavit disproving the facts set forth in the plaintiffs’ affidavit on which the attachment issued. 3d.
Read the full summary
This is an appeal from an order made at a special' term denying defendant’s motion to set aside an attachment, issued pursuant to sections 227, 8 and 9 of the Code. The motion was founded on several distinct grounds. 1st. That the affidavit was insufficient. 2d. If sufficient, then the defendant offered his opposing affidavit disproving the facts set forth in the plaintiffs’ affidavit on which the attachment issued. 3d. That the attachment was issued before the summons was issued. 4th. That the undertaking was in the form of a penal bond and that it did not provide for costs, &c. 5th. That it…
1Opinion of the Court
By the Court,
Shankland, Justice.
1. The facts set forth in the plaintiffs’ affidavit to procure the attachment, were entirely sufficient to entitle them to that process. The rule is that if enough is set forth in the affidavit, to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence, it is sufficient; it is only where there is a total want of evidence upon some essential point, that the officer will fail to acquire jurisdiction (4 Hill R. 602; 20 W. R. 77). The facts in this case are stronger than in the cases cited, to warrant this process.
2.…
2Cited by4 opinions
- Houghton v. AultNew York Supreme Court · 1858
- Taylor v. ElliottIndiana Supreme Court · 1875
- Talcott v. RosenbergNew York Court of Common Pleas · 1870
- Butterworth v. BoutilierNew York Supreme Court · 1893