Martin v. Smith , 75 N.Y.S. 780 ( 1902 )

Gildebsleeve, J.

The motion is to vacate an attachment. The Code requires the summons to be served within thirty days after the issuing of the attachment, either personally within the State or “ else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State pursuant to an order obtained therefor,” §. 638. In the case at bar the summons was served without the State, pursuant to an order of this court, within the thirty days. Subsequently, this order was vacated, and the service set aside. From this order plaintiff has appealed and the appeal is now pending before the Appellate Division. Since the said service was so set aside the thirty days have expired, without any other service of the summons. No stay of any sort pending the appeal from the order setting aside the service of the summons appears to have been granted, and, as matters now stand, there has been no valid service of the summons in this, action, while, as we have seen, more than thirty days have elapsed since the granting of the attachment. Defendant now moves to set aside the attachment on that ground. It is well settled that a failure to comply with the above quoted provisions of section 638 of the Code is fatal to the attachment. See Blossom v. Estes, 84 N. Y. 614; Kieley v. Manufacturing Co., 141 id. 622. This motion must, therefore, be granted, but, under the circumstances, without costs.

Motion granted, without costs.