Lupton v. Smith
New York Supreme Court
This is an appeal from an order setting aside an attachment against the property of the defendants. A motion was made on the part of the defendants to vacate the attachment, which was denied. A motion was then made for a reargument, which was granted; and on the reargument the attachment was set aside.
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This is an appeal from an order setting aside an attachment against the property of the defendants. A motion was made on the part of the defendants to vacate the attachment, which was denied. A motion was then made for a reargument, which was granted; and on the reargument the attachment was set aside. The attachment was granted on an affidavit of the plaintiff, which states that the defendants are indebted to James and John Fletcher in the sum of $5,000 and interest; that the defendants brought an action in this court against John and James Fletcher, in which a warrant of attachment was…
1Opinion of the CourtDavis, P. J.
— The appeal in this case presents a single question and that is, whether, under section 238 of the Code of Procedure, the plaintiff in attachment cases may, by giving the bond therein provided, prosecute in his own name the action which the sheriff is authorized to bring by sections 232 and 237 of the Code. This question has received consideration in various cases, and conflicting views have been expressed upon it. In Skinner agt. Stuart (39 Barb., 216) the point was not directly involved, because that was an action brought • by the plaintiff in attachment proceedings to compel the delivery…
2Cases cited3 opinions
- Mechanics' & Traders' Bank of Jersey City v. DakinNew York Court of Appeals · 1873
- Mechanics & Traders' Bank of Jersey City v. DakinNew York Supreme Court · 1867
- O'Brien v. . Glenville Woolen Co.New York Court of Appeals · 1872