Millbank v. Broadway Bank
New York Supreme Court
Motion for leave to filé an undertaking. This was an action prosecuted by an attachment creditor to collect a demand due from defendants to the debtor in the attachment, upon which the attachment had been levied. The objection was taken that the plaintiff had not filed the proper undertaking; and he now applied for leave to do so.
1Opinion of the CourtIngraham, J.
In this case judgment was given on the demurrer for the defendants, because the plaintiff had not, before suit, filed the undertaking required by section 238 of the Code.
The plaintiff now moves for leave to file the- undertaking nunc pro tunc. The defendants object that this cannot be allowed, because the filing of the undertaking is- a preliminary requisite to be done before commencing the action.
The Code, § 174, provides that when any proceeding fails to conform to the provisions of the Code, the court may permit an amendment of such proceeding so as to make it conformable thereto, and…
2Cases cited2 opinions
- Kissam v. MarshallNew York Supreme Court · 1860
- Bellinger v. GardnerNew York Supreme Court · 1856