Dickinson v. Benham
New York Supreme Court
Appeal from an order vacating an attachment. The plaintiffs in this action obtained an attachment under the Code of Procedure, on affidavits that the defendants were about to dispose of their property with intent to defraud creditors.
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Appeal from an order vacating an attachment. The plaintiffs in this action obtained an attachment under the Code of Procedure, on affidavits that the defendants were about to dispose of their property with intent to defraud creditors. The only facts stated in support of this were, that defendants, when called.on to give security for the debt, which they had originally agreed to give, stated that if they were sued they would assign their property for the benefit of creditors, and should provide first for confidential creditors. The defendants moved at a special term to vacate the attachment on…
1Opinion of the Court
By the Court.*—Hogeboom, J.
—I think the order appealed from must be affirmed.
The decisions are conflicting, but the practice in this district seems to be, that, where the motion to vacate or -set aside an attachment is made solely upon the insufficiency of the original papers to warrant the issuing of an attachment, opposing affidavits to support the attachment are inadmissible. (Wilson a. Britton, 6 Abbotts' Pr., 33; S. C., on appeal, Ib., 97; see also N. Y. & Erie Bank a. Codd, 11 How. Pr., 221; Furman a. Walter, 13 Ib., 348.) See Code, section 241, which says the defendant may move to…
2Cases cited4 opinions
- President & Directors of the Bank of Commerce v. Rutland & Washington RailroadNew York Supreme Court · 1854
- Genin & Lockwood v. TompkinsNew York Supreme Court · 1851
- Wilson v. BrittonNew York Supreme Court · 1858
- New-York & Erie Bank v. CoddNew York Supreme Court · 1855
3Cited by7 opinions
- Rowles v. HoareNew York Supreme Court · 1870
- Brewer v. TuckerThe Superior Court of New York City · 1861
- Quebec Bank v. CarrollSouth Dakota Supreme Court · 1890
- Pach v. OrrSuperior Court of Buffalo · 1888
- Place v. MillerNew York Court of Common Pleas · 1869
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