Ferris v. Hard.

by the firm, where the answer of one of the defendants showed a separate liability as to him. Judge ANDREWS, in speaking of the practice under section 274 of the old Code, says: "The court in construing this provision did not limit its application to cases of joint and several liability, but considered it as authorizing a separate judgment when a separate liability of some of the defendants was established on the trial, although the cause of action, as alleged in the complaint, was joint only," and that "section 1205 of the present Code is quite as comprehensive as section 274 of the former Code, and requires the same construction" (citing McIntosh v. Ensign, 28 N. Y. 169, and Fielden v. Lahens, 2 Abb. Ct. App. Dec. 111).

In this case the court can grant judgment against one or more of the defendants, and in favor of the others, as appears from the facts before me.

I can see no reason why the plaintiff may not, on the death of one of such defendants, proceed with his action against such of the rest as are liable.

The right of the plaintiff to seven per cent. interest on the mortgage, as allowed by the referee, seems to have abundant authority to sustain it (O'Brien v. Young, 95 N. Y. 428).

I do not think the order denying the plaintiff's motion to strike out the name of Gideon Hard, as party defendant, has any bearing on the case, as it was denied without prejudice to any further action or proceeding by the plaintiff..

This seems to me to be a proper case for an additional allowance to the plaintiff, but the sum cannot, under section 3253 of the Code, exceed $200, which sum is allowed the plaintiff.

The report of the referee must be confirmed and judgment ordered accordingly.

Pach v. Orr.

PACH, RESPONDENT, v. ORR, APPELLANT.

SUPERIOR COURT OF BUFFALO, GENERAL TERM, JUNE, 1888.

$ 693.

Attachment-papers on motion to vacate—when objection waived—when granting of, justified-effect of restoring attachment.

Where an application is made to set aside an attachment on the original papers, no further or additional affidavits can be read in support of the attachment; but where the application is based upon new papers, the plaintiff may, upon the hearing, read affidavits in support of it.

It seems, that although new affidavits are inadmissible to support an attachment on a motion to vacate it on the original papers, yet it is competent to read affidavite showing any change in the relation and condition of the parties and the property since the attachment was granted.

Dickinson v. Benham (12 Abb. Pr. 158), followed.

Where, upon a motion to restore an attachment vacated upon the papers upon which it was granted, the attachment debtor did not object to the reading of affidavits by the moving party,-Held, that he had waived his objection and could not raise it for the first time on appeal.

Rule 25,-requiring a statement as to whether any application has been made for an order,-does not relate to an application for an attachment, that being a process of court, but applies only to orders made in a pending action.

Where an attachment was vacated on the ground that the affidavits upon which it was granted failed to comply with Rule 25, in not showing whether any previous application had been made for the attachment, and the plaintif thereafter moved that the said attachment be restored, or that a new attachment be granted and annexed to an order to show cause why that relief should not be granted, affidavits, and the court granted the motion to restore the attachment,-Held, that it did not follow that because the affida

Pach v. Orr.

vits contained matter which could not be read in support of the original attachment, that such facts were considered by the court in determining whether an error had been committed in holding that the requirements of Rule 25 should be met before granting it; that it was rather to be presumed that upon an examination of the authorities, the court became satisfied that such proof was not necessary, than that a well-established rule of law was disregarded.

If property seized under an attachment is in the hands of the sheriff at the time an order is made restoring the attachment after it has been vacated, such order will restore the lien without a formal levy thereunder, so far at least as the defendant is still the owner of the property; but if the property was released and the lien lost, it was restored when the sheriff again took possession under the restored attachment.

Where an order vacating an order to set aside a warrant of attachment provided that "the lien of said attachment is restored,”— Hell, that while the order was unnecessary for the purpose of restoring the lien, but as it did not do more than what would follow under the law without it, no error was committed in making it.

Instance of a case in which an attachment was properly granted. (Decided June 23, 1888.)

Appeal by defendant from an order restoring an attachment against her property.

The facts appear in the opinion.

Charles B. Wheeler, for defendant-appellant.

0. O. Cottle, for plaintiff-respond

TITUS, J.-The defendant appeals from an order vacating and setting aside an order setting aside an attachment obtained by the plaintiff, from a judge at chambers.

On the 30th day of December, 1887, the plaintiff on the complaint and affidavits obtained an attachment against the property of the defendant, consisting of a stock of goods in his store No. 216 Main street, in this city. On the same day the judge granting the attachment

VOL. XV.-12.

Pach r. Orr.

set it aside on the ground, stated in the order, for failure to comply with rule 25 of the General Rules of Practice, "without prejudice to a renewal on the same or other papers for another attachment to issue." On the 4th day of January, 1888, the plaintiff procured an order on affidavits, to show cause at special term why the last named order should not be vacated. On the 12th day of January the special term made an order vacating the last order and restoring the lien of the attachment. The defendant's counsel urges many reasons why the order of the special term should be reversed. For convenience, I have examined his points in the order in which he has presented them.

It is claimed that it was error for the court to allow the plaintiff to read additional affidavits on the return of the order to show cause, under section 683 of the Code. In addition to the reasons stated hereafter, I think it is a perfect answer to the proposition of the defendant that he did not object to the reading of the affidavits on the hearing, and that he must have waived his objection and it is too late to raise it for the first time on appeal (Godfrey v. Godfrey, 75 N. Y. 434; 1 Rumsey Pr. 554).

But I cannot agree with the learned counsel in his view of the practice. It has been held in several cases, and seems to be the settled practice under section 683, that where an application is made to set aside the attachment on the original papers, no further additional affidavits can be read in support of the attachment; but where the application is based upon new papers the plaintiff may upon the hearing read affidavits in support of it (Ives v. Holden, 14 Hun, 402; Buhl v. Ball, 41 Id. 61; Smith v. Arnold, 33 Id. 484; Sutherland v. Bradner, 7 N. Y. Civ. Pro. 90; Steuben County Bank v. Alberger, 75 N. Y. 179; 1 Rumsey Pr. 553, 554).*

* See also, Hirsh v. Hutchinson, 3 N. Y. Civ. Pro. 106; Trow Printing & Bookbinding Co. v. Hart, 1 Id. 240.

Pach v. Orr.

The order vacating the attachment was granted, not on account of the insufficiency of the affidavits to support it on the merits, but upon the express ground that the plaintiff had failed to comply with rule 25, in not showing whether any previous application had been made for an attachment; inferentially holding that the affidavits were sufficient to authorize the attachment, had the plaintiff complied with the rule.

It has been held that rule 25 does not relate to an application for an attachment, being a process of the court, but applies only to orders made in an action pending (Davis v. Brooks, 4 Law Bull. 49; Mojarrieta v. Saenz, 80 N. Y. 547; 1 Rumsey Pr. 522).

It seems to me that this is the necessary and proper construction of the rule from its language, and the special term, on the hearing of the order to show cause, presumably so held as no point was made that, if the plaintiff was not required to make proof under rule 25, the affidavits were not sufficient on the merits to authorize the attachment. The defendant's counsel in his brief states that the affidavits read by him in opposition to the motion were read with a view of meeting the allegations of the plaintiff in his new application for an attachment, and not with a view of attacking the affidavits used in procuring the attachment originally. This is probably so, as the plaintiff in his order to show cause asked alternate relief, that a new attachment should issue; but upon the question of vacating the order setting aside the attachment, they were not considered by the court, nor was the new proof made by the plaintiff, in passing upon the sufficiency of the original papers. The court undoubtedly came to the conclusion that the order setting aside the attachment on the ground that the plaintiff had not complied with rule 25 was erroneous, and vacated the order. Affidavits to obtain an order to show cause were necessary, and it does not follow that because the affidavits contained matters which could not be read in support of the attachment,