Cole v. Smith

The defendant’s motion to vacate the warrant of attachment was brought on on an order to show cause. The affidavit on which the order to show cause was obtained failed to state the present com dition of the action, whether at issue, and if not yet tried the time appointed for holding the next term where the action is triable. Counsel for the plaintiff upon the return of the order and before the hearing made a preliminary objection that the moving papers did not comply with rule 37 of the General Rules of Practice in this regard. His preliminary objection was overruled and the motion was granted upon the ground that the papers upon which the warrant of attachment was issued were insufficient.

The General Rules of Practice are made to be observed. The order to show cause was improperly granted in violation of rule 37, and the objection having been timely taken, it should have been sustained and the motion denied. Had the rule been complied with, it would have appeared that the action had been tried, a verdict rendered in favor of the plaintiff, and a motion for a new trial denied and a stay of the entry of judgment granted. Perhaps if these facts had been brought to the attention of the judge who granted the order, he would not have deemed it a proper case for dispensing with full notice. By the short notice the plaintiff may have been deprived of a substantial right in not being afforded adequate time and opportunity to meet the motion, which, having been made upon additional papers, he was at liberty to meet with affidavits .tending to sustain the attachment if his original papers were insufficient. The General Rules of Practice are binding upon the Trial and Special Terms, and compliance therewith must be required where the objection is seasonably and properly taken. It is no answer to this objection that the plaintiff in his answering affidavits showed the condition of the action. He was obliged to prepare to meet the motion on the merits as best he could in the time allowed.

It follows that the order must be reversed, but it may be observed that even on the merits the motion was improperly granted. The alleged defect in the attachment papers upon which the respondent relies is that the non-residence of the defendant was shown only by the affidavit of the plaintiff, and that it does not appear that he had personal knowledge of the fact. The action is brought to recover *502$5,000 paid to the defendant by the plaintiff for capital stock of the Graphite Metal Company, a Hew Jersey corporation. It is alleged that the defendant falsely and fraudulently represented that the stock had been issued in his name, that he was the owner thereof, and that after obtaining the consideration for the sale thereof he failed and neglected to perform the contract. The plaintiff’s affidavit shows that he personally conducted negotiations for the sale of the stock with the 'defendant, and states positively not only that the defendant is a non-resident of this State, but that he resides at Plainfield, in the State of Hew Jersey. These facts bring the case within the doctrine of Hayden v. Mullins (76 App. Div. 69), where it was held that a similar affidavit sufficiently showed the nomresidence of the defendant.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Patterson, O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements;, and motion denied, with ten dollars costs.