Haight v. Husted , 5 Abb. Pr. 170 ( 1857 )

Two of the members of the court were in favor of affirming the order, upon the grounds stated in the opinion delivered below; but the presiding justice thought it unnecessary to express an opinion on that point. He was of opinion that the plaintiff’s proceedings were a fraud upon the statute; that the plaintiff, having ascertained that the defendant’s team had come within the State, had made the affidavit on which to obtain the order of publication, and had therein stated that defendant had property within the State ; and had made use of that affidavit to obtain the order of publication, at a subsequent day, and when he must have known that the defendant’s property had been withdrawn from the State, and was no longer within the jurisdiction of the court.

The other members of the court concurred in the opinion that the proceedings of the plaintiff were a fraud upon the statute, and that such fraud was a sufficient reason for setting aside the judgment and proceedings.

The order appealed from was affirmed, with costs.