Opinion
May 23, 1960
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Sullivan County, dated October 10, 1959 and entered in the County Clerk's office of Orange County on October 15, 1959, vacating a warrant of attachment obtained against the property of the nonresident corporate defendant. Order reversed, with $10 costs and disbursements, and motion denied. In vacating the attachment, the Special Term was of the view that plaintiffs' attorney in his affidavit incorrectly stated that "no previous application had been made therefor," whereas it is claimed that such application was made previously to Mr. Justice BAILEY. Plaintiffs' attorney denied that he had made a previous application and explained that when he appeared before Mr. Justice BAILEY the latter indicated his aversion to signing a warrant of attachment in tort actions; that Mr. Justice BAILEY approved the suggestion that the application be made before Mr. Justice DOSCHER, and that the latter, after being fully advised of the facts and circumstances, signed the warrant of attachment. In our opinion, under the circumstances the Special Term was not justified in vacating the warrant of attachment on the ground stated. The plaintiffs' attorney stated facts which were based on personal knowledge and stand uncontroverted, whereas the version of defendant's attorney was based on hearsay information. Moreover, we have considered all the other points of defendant, and find that they lack merit. Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.