Hoormann v. Climax Cycle Co.
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, New York county. Action by Frederick C. Hoormann against the Climax Cycle Company. From an order granting the motion of George Schubach, a junior attaching creditor, to vacate plaintiff’s attachment because of the insufficiency of the affidavit on which the attachment was granted (40 N. Y. Supp. 1067), plaintiff appeals. Affirmed.
1ConcurrenceBarrett, J.
The requirements of section 63(5 of the Code of Civil Procedure are neither technical nor formal. The right to attach on mesne process is an extraordinary power’ given by statute against common right, and no title can be acquired by its exercise except upon strict compliance with the terms of the statute. 3 Enc. PI. & Frac. p. 3, and numerous cases there cited. By strict compliance is undoubtedly meant substantial ■ compliance. But mere formal compliance will not answer. One of these substantial requirements is that the plaintiff must show by affidavit, to the satisfaction of the judge…
2Cases cited6 opinions
- Murphy v. . JackNew York Court of Appeals · 1894
- Tim v. . SmithNew York Court of Appeals · 1883
- Ladenburg v. Commercial Bank of NewfoundlandAppellate Division of the Supreme Court of the State of New York · 1896
- Hanson v. MarcusAppellate Division of the Supreme Court of the State of New York · 1896
- People Ex Rel. Cook v. BeckerNew York Court of Appeals · 1859
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