Opinion
June 1, 1953.
Plaintiff appeals from an order vacating a warrant of attachment obtained in aid of purported causes of action to recover the principal of and interest on certain bonds issued by the Kingdom of Roumania. Order affirmed, with $10 costs and disbursements. It does not appear from the complaint, the supporting affidavit, and the other documents which constituted the moving papers, that any cause of action exists in favor of plaintiff against the defendant. Carswell, MacCrate and Schmidt, JJ., concur; Nolan, P.J., and Adel, J., dissent and vote to reverse the order and to deny the motion. The papers on which the attachment was granted show, at least prima facie, the breach by defendant of an agreement made for the benefit of the bondholders, although there is no direct obligation by defendant to pay plaintiff. On a motion of this character the court may not decide in advance the merits of the controversy by vacating an attachment unless the complaint and affidavits clearly indicate that plaintiff must ultimately fail. [See post, p. 740.]