Gwalter v. New York Seal Plush and Tapestry Co. We therefore think that the order appealed from should in all respects be affirmed, with costs. VAN BRUNT, P.J., concurred in result. ANDREWS, J., concurred. GWALTER, RESPONDENT, v. NEW YORK SEAL PLUSH AND TAPESTRY CO., APPELLANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; MAY, 1892. § 635 et seq. Attachment-when motion to vacate properly denied. Where upon a motion to vacate an attachment issued against the property of a foreign corporation in an action for goods sold and delivered the defendant showed that the goods were sold upon a credit which had not expired at the time of the commencement of the action, and the plaintiff met this allegation by affidavits charging and tending to prove fraud in the original sale,-Held, that the motion should be denied; that if there was fraud in the original sale the plaintiff had the right to a rescission because thereof, and it was not necessary for him to allege or prove it as a part of his cause of action, but he might prove it upon the trial in rebuttal of proof tending to show the giving of the credit. (Decided May 13, 1892.) Appeal by the defendant from an order of the New York county special term denying a motion to vacate an attachment. The facts are stated in the opinion. Gwalter v. New York Seal Plush and Tapestry Co. D. D. Sherman, for defendant, appellant. J. L. Bishop (Putney & Bishop, attorneys), for plaintiff, respondent. PER CURIAM. (VAN BRUNT, P.J., O'BRIEN and BARRETT, JJ.). The attachment was properly granted upon an affidavit disclosing a sufficient cause of action for goods. sold and delivered, and showing that the defendant is a foreign corporation. The motion to vacate was based upon affidavits tending to show that the goods were sold upon a credit which had not expired at the time of the commencement of the action. The plaintiff met these affidavits by affidavits charging and tending to prove fraud in the original sale. It seems to us quite clear that the question of fact thus presented was properly remitted to the trial of the action, and that the court correctly decided that the attachment should not be disturbed. The defendant is in error in supposing that it was necessary for the plaintiff to set forth in his affidavit, or even in his complaint, the credit in question, and to allege, as a basis for rescission, fraud in the original contract of sale. It is well settled in this state that the plaintiff, under such circumstances, may rescind the credit, and sue at once for the value of the goods, leaving the question of fraud to be determined upon the trial, should the defendant set up the credit in his answer. If the credit be thus set up, the plaintiff, upon the trial, may properly rest upon proof of the sale and delivery of the goods. The defendant may then prove an unexpired credit, and at that stage the plaintiff, by way of rebuttal, may prove the fraud. The affidavits read in opposition to the present motion make out a case of fraud amply sufficient to warrant the presentation of that question to a jury.* It * See Victor v. Henlein (7 N. Y. Civ. Pro. 67) to this effect. Meyers v. Herbert. is quite clear that what may thus properly be presented at the trial, and there submitted for the determination of a jury, should not now be ignored, nor should the verdict of the jury thereon be forestalled upon a mere preliminary motion of this character. The order appealed from should be affirmed, with $10 costs and disbursements. MEYERS et al., JUDGMENT CREDITORS, APPELLANTS, v. HERBERT, JUDGMENT DEBTOR, RESPONDENT. SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM; MAY, 1892. § 2432 et seq. Supplementary proceedings-when abandoned-what use of property is not contempt. Where the examination of a judgment debtor in proceedings supplementary to execution were concluded on November 2, 1887, and an adjournment taken to November 12, and the proceedings then adjourned to a future date in November, 1887, which was not fixed, and thereafter nothing further was done until April, 1891, when a new order for the examination of the judgment debtor was obtained,-Held, that the failure for so long a time to reinstate the hearing or apply for a receiver must be deemed a termination of the proceedings; that the judgment debtor was not guilty of contempt in disposing of jewelry belonging to her where she was destitute and the proceeds thereof were necessary for her support, notwithstanding an injunction contained in the original order made in 1887 for her examination in said proceedings. (Decided May 9, 1892.) Meyers v. Herbert. Appeal by the judgment creditor from an order of the Kings county special term denying a motion to punish the judgment debtor for contempt. ent. The facts appear in the opinion. M. Clelland Milnor, for judgment creditors, appellants. Carrington & Emerson, for judgment debtor, respond BARNARD, P.J.-The judgment in this case was obtained in February, 1887. In October, 1887, the defendant was examined under proceedings supplementary to execution. Her examination was completed on the 2d of November, 1887. An adjournment was taken to November 12, 1887, for the examination of witnesses. On that day the judgment creditors (plaintiffs) obtained a further postponement to a future day in November, 1887, which was not fixed. The supplemental order contained the usual injunction against a disposition of her property by the judgment debtor. After the 12th of November, 1887, there was no further hearing under the order of 1887. In April, 1891, the plaintiffs obtained a new order for the examination of the judgment debtor. It appeared that the debtor had disposed of certain property she had at the examination of 1887, to her mother, for value; the consideration being money advanced by defendant's mother to her to a greater amount than the value of the property sold, being the jewelry of the defendant. The transfer was made April 1, 1891, after the defendant was informed that the plaintiffs claimed that Judge PRATT'S order was still in force, and before the new order was obtained from Judge CULLEN. There was no contempt of Judge PRATT'S order proven The plaintiffs never applied for a receiver, or for an order for the delivery of the property to the creditor. Campbell v. Ernest. Some three and a half years had elapsed since the close of the examination. When informed by the plaintiffs' attorneys that they claimed Judge PRATT'S order against assignment of property was still in force, the defendant consulted a lawyer of high character for learning, and was informed that the proceedings were abandoned, and that the injunction order terminated with the abandonment. The defendant had no lawyer to represent her on the examination under Judge PRATT's order. The failure for so long a time to reinstate the hearing or to apply for a receiver must be deemed an abandonment of the proceedings. The property consisted, as we have seen, of the personal ornaments of the defendant. Soon after the examination her husband abandoned her, and she became destitute, and dependent upon her mother. It was not a contempt, under the circumstances, for her to sell her jewelry after the proceedings had been so long dormant. Order affirmed with costs. DYKMAN & PRATT, JJ., concurred. CAMPBELL v. ERNEST. SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM; MAY, 1892. $ 604. Injunction when not granted to restrain disposition of property pending action. An injunction cannot be granted in an action wherein a money judg⚫ ment only is sought, to restrain the disposition by the defendant pendente lite of property belonging to him. The provision |