Day v. Bach
The Superior Court of New York City
Appeal from judgment in favor of plaintiff, entered on verdict of a jury, and also from the order denying defendant’s motion for a new trial, made upon the minutes. The action was by the plaintiff, as general assignee of one Scheuer, for the benefit of the latter’s creditors. The complaint charged a wrongful taking and conversion, by defendant, of Scheuer’s goods.
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Appeal from judgment in favor of plaintiff, entered on verdict of a jury, and also from the order denying defendant’s motion for a new trial, made upon the minutes. The action was by the plaintiff, as general assignee of one Scheuer, for the benefit of the latter’s creditors. The complaint charged a wrongful taking and conversion, by defendant, of Scheuer’s goods. On the trial it appeared that the defendants had begun an action in the supreme court on an account stated, and that, in such action, they applied for and obtained an order of attachment. The affidavit on which this order was made…
1Opinion of the Court
By the Court.—Sedgwick, Ch. J.
The court issuing the attachment had jurisdiction for that purpose, and there was no irregularity in the proceeding. The *465affidavits on which the attachment was made disclosed evidence of a competent kind, establishing, in the absence of explanation, one of the cases in which the statute provides for an order of attachment. Malice was not alleged against the defendants, or charged against them on the trial.
Chitty says, of actions of this kind, that “ case for the malicious motive and want of probable canse for the proceeding is the only sustainable form of action”…
2Cases cited6 opinions
- Kerr v. . MountNew York Court of Appeals · 1863
- Smith v. ShawNew York Supreme Court · 1815
- Wehle v. . ButlerNew York Court of Appeals · 1874
- Lyon v. YatesNew York Supreme Court · 1868
- Simpson v. HornbeckNew York Supreme Court · 1870
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Aguilo Fuster v. Marquez CuelloDistrict Court, D. Puerto Rico · 1906
- Cuello v. FusterDistrict Court, D. Puerto Rico · 1907