Belmont v. Sigua Iron Co.

O’BRIEN, J.

The proof as to the making and delivery of the promissory note was sufficient, and' the contentions at the Special Term related to the other matters covered by the attachment affidavit, and were, principally, whether or not the defendant is a foreign corporation, whether the amount specified was due above all counterclaims, and whether the summons had been issued. In these particulars the defendant insisted that the proof to support the attachment was insufficient.

In determining the strength of these contentions, the first question for consideration is the one which was resolved adversely to the plaintiff, namely, whether, in moving upon the original affidavits and also on the judgment, the defendant opened the door, under section 683 of the Code of Civil Procedure, for the admission of new proof in support of the attachment. The learned judge at Special Term held that no right had been conferred by the defendant upon the plaintiff to offer additional affidavits, and in his opinion said:

“Where an affidavit is offered merely to show the party’s right to move or to excuse loches, no right is thereby conferred on the opposing party to offer other affidavits in support of the attachment. Trow’s Printing, etc., Company v. Hart, 85 N. Y. 500; Steuben County Bank v. Alberger, 75 N. Y. 179.”

With respect to these cases it is first to be observed that they both relate to motions made by subsequent lienors or transferees, and not by a defendant. Where the former move, it is necessary under the Code to show, before doing so, that the lienor has a status, and this requires proof that he has a lien on the property attached. We find, however, no such condition imposed upon a defendant who, from his position in the action, has a right, without more appearing than that he is a defendant, to move to vacate an attachment. It is true that, if he should delay, and in the meantime it appeared that the property levied upon under the attachment had been applied upon the judgment recovered in the action, this would result in a denial of his motion. Such facts, however, it is unnecessary for him to show for the purpose of moving, but rather they would be a matter of defense to the motion, and, seemingly, it would be necessary for the plaintiff to prove them in order to resist an attack made by the defendant upon the attachment. If so, then the defendant’s motion was founded upon proof in addition to the original affidavit, and this opened the door for new affidavits by the plaintiff in support of his attachment.

Without deciding this question, however, and assuming that it was necessary for the defendant, before moving, to establish a status, by showing that the attached property had not been applied on the judgment, we think it but right that, he having moved on the judgment, such judgment was as available to the plaintiff as it was to him in establishing any facts of which it furnished the proof. In other words, the judgment was used upon the motion, and, no limitation having been fixed by the notice of motion, it was before the court for what it was worth. So considered, we think its effect was to supply the defects in the proof in the respects in which it was insisted that the original affidavit was defective. Thus, the judgment recites that the defendant is a “foreign corporation,” and it shows that the plaintiff had a cause of action against the defendant for the breach of an express contract for the payment of money, and for the identical sum alleged in the warrant to be due. In this manner the amount for which the plaintiff was entitled to recover above all counterclaims is shown. .The entire judgment roll is not printed, but, it being one of our own -records, we have a right to assume that the facts recited in the judgment are supported by sufficient proof. That is to say; the defendant having moved on a copy of the judgment, which presumably was regularly entered, the further presumption that it was entered upon sufficient proof to support its recitals may be indulged in. At all events, it may be viewed as containing admissions made by the defendant, who moved upon it, and used it presumably on the strength of its validity as a basis to establish his status to make the motion, "thereby affirming its verity.

Regarding the statements in the judgment as admissions by the defendant, the jurisdictional defects upon which the defendant particularly relied were supplied, as we have endeavored to point out.

With respect to the summons all that need be said is that section 638 of the Code of Civil Procedure provides that the warrant may be granted “to accompany the summons or at any time after the commencement of the action,” from which the inference may be drawn that no proof, in the first instance, of the issue of the summons, is requisite. That section further provides for the service of the summons within 30 days after the issue of the -warrant. Here the attachment was granted June 5, 1894, and service on June 30, 1894, is recited in the judgment.

We have examined the minor objections, but do not think they require to be specially mentioned, more than to say that we regard them as without merit. The long time that has elapsed, and the fact that the motion was not made until after the judgment was recovered, and then only upon the papers on which the motion was made, require that we should indulge in every reasonable presumption to support the attachment. We think the defendant’s motion to vacate the attachment should have been denied.

The order appealed from should accordingly be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.