Birdsall v. Emmons

This is an appeal from an order made .at the special term, denying a motion to vacate an attachment against the property of the defendants, who were nonresidents, on the ground that the affidavit upon which the attachment was issued failed to state facts sufficient to constitute a cause of action. The attachment was issued on the 5th day of February, 1895, and on February 18, 1895, the property attached was sold, by order of the court, as perishable property. The defendants have not appeared or answered, and judgment in favor of the plaintiff has been duly entered in Orange county. An order to show cause why the attachment should not be vacated was made returnable on the 16th day of April, 1895, and the motion to vacate the attachment was made on that day, and denied, with costs. The motion to vacate the attachment was based on the contents of the affidavit of the plaintiff upon which the attachment was based, and no counter affidavits were used. In our view, the affidavit upon which the attachment was granted is sufficient, and sets forth a complete cause of action upon an expressed and implied contract, and a breach thereof on the part of the defendant. The order should be affirmed, with costs.