Sanger v. Connor

The affidavits upon which the order to show cause was granted failed to state the present condition of the action and whether at issue, and, if not yet tried, the time appointed for holding the next Trial Term where the action is triable. Upon the return of the order to show cause, and before the hearing, the plaintiff made a preliminary objection that the moving papers did not comply with rule 37 of the General Rules of Practice which provides that these matters must be stated. The objection was good and should have been sustained. (Cole v. Smith, 84 App. Div. 500.)

*522Apart, therefore, from the merits, which we do not pass upon, we think the motion to vacate the warrant of attachment for failure to comply with the rules of practice was properly denied. The -order appealed from should accordingly be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien, McLaughlin, Hatch and Laughlin, JJ.

Order affirmed, with ten dollars costs and disbursements.