Eriksson v. Refiners Export Co. , 38 N.Y.S.2d 580 ( 1942 )

Per Curiam.

The failure to comply with section 235 of the Civil Practice Act invalidated the attachment and since the jurisdiction acquired by the attachment was conditional “ and liable to be divested in a case where the jurisdiction of the court is made dependent by a special provision of law upon some act to be done after the granting of the provisional remedy ” it was proper to vacate the attachment ab initio (Civ. Pr. Act, § 825; Matthews v. Matthews, 210 App. Div. 652; affd., 240 N. Y. 28.) Otherwise an invalid attachment could be made the means of withholding property from the possession of the owner until a valid attachment was secured and perfected.

We think that section 906 of the Civil Practice Act does not apply to the present case. By express terms that section is limited to a failure by the plaintiff to file the papers specified therein or to “ any other defect or omission in the granting or issuance ” of the warrant of attachment or the levy thereunder. It does not create a jurisdiction which by section 825 of the Civil Practice Act is made to depend upon “ some act to be done after the granting of the provisional remedy.”

The order should be affirmed with twenty dollars costs and disbursements.