(922) Order discharging attachment of (924) Order cancelling notice pendency of action and attachment of real property. (925) Notice of motion to tax sheriff's fees on attachment. (926) Order taxing sheriff's fees on attachment. 1. Motion to vacate or modify attachment, or increase security, on original papers.]2— To vacate or modify an attachment, or increase the security, application may be made on the original papers, (1) to the court (held by any judge23) and on notice; or, (2) to the judge who granted it, in which case the application may be made either in court or out of court, and without notice; but he may require notice to be given.24 Upon such a motion, the plaintiff cannot oppose on fresh proof, but is confined to his original affidavits,25 and the court has no power to allow an amendment of the affidavits.26 But the court has power to permit additional affidavits to be received in support of the attachment, to supply omissions of material allegations affecting the amount of the attachment, where plaintiff in his original papers has shown a right to recover a portion of the amount claimed.27 Such motion is no bar to a subsequent motion without leave obtained to vacate on the merits upon affidavits on defendant's Part. 28 22 A motion will lie to set aside a levy upon and seizure of property, and yet allow the attachment as a writ to stand. See Bridges v. Ware, 110 App. Div. 106. Not, however, as to a levy upon intangible property. Simpson v. Jersey City Contr. Co., 47 App. Div. 17, 61 N. Y. Supp. 1033, 30 Civ. Pro. Rep. 161. A levy upon a debt was, however, set aside in Carr v. Corcoran, 44 App. Div. 97, 60 N. Y. Supp. 763. 23 Ruppert v. Haug, 87 N. Y. 141, 62 How. Pr. 364, 1 Civ. Pro. Rep. 411. 24 N. Y. Code Civ. Pro., § 683. 25 Ladenburg v. Com. Bank, 87 Hun, 269, 33 N. Y. Supp. 821; Pach v. Orr, 15 Civ. Pro. Rep. 176; Steuben County Bank v. Alberger, 75 N. Y. 179; Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500; Buhl v. Ball, 41 Hun, 61, 65, appeal dismissed, 106 N. Y. 672; Appleton v. Speer, 57 N. Y. Super. Ct. 119, 6 N. Y. Supp. 511 (holding that in such a case the plaintiff cannot supply defects in the original affidavits). A complaint subsequently served cannot be considered. Fox v. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295. See also Sutherland v. Bradner, 34 Hun, 519. 26 Davis v. Reflex Camera Co., 97 App. Div. 73, 89 N. Y. Supp. 587. An obvious clerical error may be disregarded. Vogelman v. Lewit, 48 Misc. 625. 27 Sulzbacher v. Cawthra & Co., 14 Misc. 545, 36 N. Y. Supp. 8, aff'd on opinion below, 148 N. Y. 755 (omission to show facts liquidating prospective damages in original affidavits, although a sum of past damages was shown). 28 Thalheimer v. Hays, 103 N. Y. 648, 3 St. Rep. 441; Hawkins v. Pakas, 44 App. Div. 395, 60 N. Y. Supp. 1108. A motion is deemed to be on the original papers within these rules, and not upon affidavits on the defendant's part, notwithstanding the necessary affidavit merely to obtain an order to show cause is used,29 or that the moving party, being a third person, presents the necessary affidavit to show the existence of the lien,30 or other circumstances, giving him a right to move, and excusing delay.3 31 Such motion is in effect a demurrer, and admits every fact apparent in the papers,32 and plaintiff is entitled to all reasonable inferences in his favor.33 2. on defendant's papers.] — For the like relief, application may be made, upon affidavits on the defendant's part and on. notice, (1) to the court; or, (2) to any judge of the court. Such a motion the plaintiff may oppose, by new proof by affidavits on his part (or admissions in the defendant's moving papers) 34" tending to sustain any ground for the attachment recited in the warrant, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration granted in insolvent proceedings; in which case the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial."35 A motion is deemed to be on papers on defendant's part within these rules if defendant applies on plaintiff's complaint as well as on the original papers when they did not include it; or on 36 29 Brewer v. Tucker, 13 Abb. Pr. 76. On such a motion, the fact that the formal affidavit does not deny the charges of fraud will not create a presumption against the defendant. Stein v. Levy, 55 Hun, 381, 8 N. Y. Supp. 505. 30 Steuben County Bank v. Alberger, 75 N. Y. 179. 31 Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500. 32 Condouris v. Imp. Turkish, etc., Co., 3 Misc. 66, 22 N. Y. Supp. 695; Everett v. Park, 88 Hun, 368, 34 N. Y. Supp. 827. 33 Stewart r. Lyman, 62 App. Div. 182, 70 N. Y. Supp. 936. 34 Herman v. Bailey, 20 Misc. 95, 45 N. Y. Supp. 88; Vogelman v. Lewit, 48 Misc. 625. 35 N. Y. Code Civ. Pro., § 683; Coffin v. Stitt, 5 Civ. Pro. Rep. (Browne), 261 (holding that on a motion on an affidavit denying the debt, plaintiff might supply evidence that the debt had matured before suit was brought). Muser v. Lissner, 67 How. Pr. 509 (holding that where defendant moves to vacate on an allegation that the debt was not due when the suit was brought, plaintiff may show fraud entitling him to disregard agreement for credit). Herman v. Bailey, 20 Misc. 95, 45 N. Y. Supp. 88 (failure to show defendant's non-residence cured by defendant's affidavits, and plaintiff's additional affidavits). Acker v. Saynisch, 25 Misc. 415, 54 N. Y. Supp. 937, aff'd, 26 Misc. 836 (additional affidavits rejected as tending to support a ground of attachment not recited). 36 Ives v. Holden, 14 Hun, 402. affidavits which put in issue any of plaintiff's allegations, although the allegations so controverted are immaterial,37 or affidavits which go to support any ground for vacating,38 as distinguished from affidavits merely showing the standing in court of the moving party or the seasonableness of his motion. 3. when to be made.] Such motion may be heard as of right at any time before the actual application of the attached property or the proceeds thereof,39 to the payment of a judgment recovered in the action.40 It is not precluded by the fact that the attachment has been discharged upon defendant giving security for the debt; nor by the fact that the attachment has fallen because of plaintiff's failure to serve the summons within thirty days;42 nor by the discontinuance of the action before defendant's appearance; nor by a prior motion to reduce the amount; nor is an application founded on new papers on defendant's behalf precluded by the fact that a motion made on the original papers had been denied.15 44 .43 4. Who may move.]-A defendant may move without putting in a general appearance, and is not obliged to move as soon 46 37 Godfrey v. Godfrey, 75 N. Y. 434. 38 Buell v. Van Camp, 6 N. Y. Supp. 365, aff'd 119 N. Y. 160. 39 The motion should be actually brought to a hearing before such application of attached property or proceeds. Pfluke Co. v. Papulias, 42 Misc. 18, 85 N. Y. Supp. 543. 40 N. Y. Code Civ. Pro., § 682; Andrews v. Schofield, 27 App. Div. 90, 50 N. Y. Supp. 132, 5 Anno. Cas. 311. A mere levy is not such an application. Woodmansee v. Rogers, 82 N. Y. 88. The motion may be made after final judgment and execution issued; if it be before application of the proceeds. Parsons v. Sprague, 3 Civ. Pro. Rep. (Browne) 290, 65 How. Pr. 151. And if denied, appeal is proper, even after such application. Bank v. Pacific Nat. Bank, 30 Hun, 50. Market Nat. As to the right to move to vacate a void attachment, even after judgment, see Goodyear Rubber Co. v. Knapp, 61 Wis. 123, 20 N. W. Rep. 657. 41 Lawlor v. Magnolia Metal Co., 2 App. Div. 552, 38 N. Y. Supp. 36; Dusseldorf v. Redlich, 16 Hun, 624; Claflin v. Baere, 57 How. Pr. 78. 42 Corn Exch. Bank v. Bossio, 8 App. Div. 306, 40 N. Y. Supp. 994. 43 Am. Audit Co. v. Indust. Fed. of Am., 87 App. Div. 275, 84 N. Y. Supp. 369. But no judgment of dismissal can be properly entered under such circumstances. Straus v. Gilhou, 80 App. Div. 50, 80 N. Y. Supp. 180. 44 Sulzbacher v. Cawthra & Co., 14 Misc. 544, 36 N. Y. Supp. 8, aff'd, 148 N. Y. 755. 45 N. Y. Code Civ. Pro., § 686; Thalheimer r. Hays, 42 Hun, 93; Hawkins v. Pakas, 44 App. Div. 395, 60 N. Y. Supp. 1108. 46 Manice v. Gould, 1 Abb. Pr. (N. S.) 255; Monette v. Chardon, 16 Misc. 165, 37 N. Y. Suppl. 2. 47 as he appears in the action. Nor is he precluded from moving by the fact that a third person has claimed as his own the property attached, and the plaintiff has given a bond of indemnity against such claim.48 But he, or his successor in interest, is precluded by having brought an action against the sheriff for a conversion.49 5. defendant or third person having partial interest.50] — It is no objection to such a motion, either on the part of a defendant or a third person, that he is interested in only a part of the property attached. 51 6. — third person.] One who has, even subsequent to the attachment, acquired a title to,52 or lien on53 any part of the attached property, may move to vacate or modify the warrant or the attachment on the ground of the insufficiency of the affidavits on which it was granted. But subsequent attaching creditors cannot invoke irregularities in the attachment papers; only jurisdictional defects are available." 54 The burden is on such third person to adduce evidence of a valid transfer or lien in support of his claim.55 47 Franke v. Havens, 102 App. Div. 67, 92 N. Y. Supp. 377. 48 Whitelegge v. Witt, 12 Daly, 319. As to other objections, see paragraph 3. 49 Marx v. Ciancimino, 59 App. Div. 570, 69 N. Y. Supp. 672. 50 Walts v. Nichols, 32 Hun, 276, 19 Wkly. Dig. 165. 51 Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500. 52 Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500; Marx v. Ciancimino, 59 App. Div. 570, 69 N. Y. Supp. 672. 53 Steuben County Bank v. Alberger, 75 N. Y. 179; s. p., Nat. Shoe, etc., Bank v. Mechanics, etc., Bank, 89 N. Y. 440 (receiver of an insolvent national bank appointed after the issuing of the attachment); s. P., Smith v. Davis, 29 Hun, 306, 3 Civ. Pro. Rep. (Browne) 74; Neal v. Sachs, 15 Wkly. Dig. 476; Ruppert v. Haug, 87 N. Y. 141 (where subsequent judgment-creditor levied execution on the attached property); People's Bank v. Mechanics' Bank, 62 How. Pr. 422 (such subsequent lienor need not be made a party to enable him to make the motion). Jacobs v. Hogan, 86 N. Y. 243 (junior attaching creditor); s. P., Dickinson r. Benham, 12 Abb. Pr. 158; Brewer v. Tucker, 13 id. 76; Gasherie v. Apple, 14 id. 64; Marine Bank v. Ward, 35 Hun, 395 (general assignee for the benefit of creditors). As to foreign assignee, liquidators, etc., compare Hibernia Nat. Bank v. Lacombe, 21 Hun, 166, aff'd, 84 N. Y. 367; Matter of Waite, 99 N. Y. 433. 54 Van Camp v. Searle, 147 N. Y. 150, 2 Anno. Cas. 351. 55 Davis v. Brooks, 14 Wkly. Dig. 454, aff'd, 90 N. Y. 653; Tim v. Smith, 93 id. 87 (holding allegations on information and belief that the moving party's attachment had been levied were insufficient). S. P., Ladenberg v. Com. Bank, 148 N. Y. 202, 2 App. Div. 477. Selser Bros. Co. v. Potter Produce Co., 77 Hun, 313, 28 N. Y. Supp. 428; 7. Rules for decision.] -The court will not ordinarily, upon the motion, consider the merits, or determine whether the cause of action exists,56 but will leave questions of fact arising upon the cause of action for determination at the trial.57 The existence of grounds for the attachment, extrinsic to the cause of action, may be disproved upon a motion to vacate.58 - 8. By third person claimed to be indebted.] No motion will lie to vacate a levy upon an alleged indebtedness, upon papers showing that in fact no indebtedness exists. If in fact there is no indebtedness the levy is ineffective and need not be vacated, while if any does exist the attaching creditor is entitled to continue the lien and enforce it by action.59 FORM No. 895. Notice to sheriff that property levied on is exempt.60 [Title of court and cause.] Please take notice that the [describe articles] attached by you herein are exempt from levy and sale on execution by reason of [stating facts establishing exemption]. [Date, etc., as in Form 854.] Delmore v. Owen, 44 Hun, 296 (holding that a jurisdictional defect in the attachment of the moving party, appearing on the record, was fatal). A denial of an execution creditor's motion to vacate, on the ground that his judgment is invalid, is no bar to a subsequent similar motion by him on the ground that the attachment is a cloud upon a title claimed by him to the attached property. Steuben County Bank v. Alberger, 83 N. Y. 274, 61 How. Pr. 227, 11 Wkly. Dig. 279. Where the lien rests upon the judgment of a court of limited jurisdiction, as the New York City Court, the papers must show the facts establishing jurisdiction. Grob v. Met. Coll. Agency, 30 Misc. 314, 63 N. Y. Supp. 513; Sill Stove Works r. Scott, 62 App. Div. 566, 71 N. Y. Supp. 181. 56 Kirby v. Colwell, 81 Hun, 385, 30 N. Y. Supp. 880. 57 Furbish v. Nye, 17 App. Div. 325, 45 N. Y. Supp. 214, 4 Anno. Cas. 241; Romeo v. Garofalo, 25 App. Div. 191, 49 N. Y. Supp. 114; Norden v. Duke, 106 App. Div. 514, 94 N. Y. Supp. 878. The court will merely examine the complaint with a view to seeing whether it is hopelessly bad, or so barren of substantial averments that no reasonable arguments can be used in its support. Jones v. Hygienic Soap Gran. Co., 110 App. Div. 331, 97 N. Y. Supp. 104. 58 Boscher v. Roullier, 4 Abb. Pr. 396. 59 See Weil v. Gallun, 75 App. Div. 439, 78 N. Y. Supp. 300. Go The law does not require written notice in order to render the officer liable (Finnin v. Malloy, 33 N. Y. Super. Ct. 382), but notice must be given before actual sale (Hartmann v. Wood, 57 App. Div. 23, 67 N. Y. Supp. 1046), and for convenience of proof, it will be best to give it in |