Opinion
Argued May 31, 1881
Decided June 14, 1881
Raphael J. Moses, Jr., for appellant. I.T. Williams for respondent.
Sherwood acquired, by his conveyance from Hart, an interest in the land attached, and was, therefore, entitled to move to vacate the attachment, under section 682 of the Code. The right of third persons to move, is not confined to persons who have acquired liens or interests, by proceedings in invitum, against the defendant in the attachment. The language of the section, does not admit of this limitation; nor does there seem to be any reason why a person who has acquired an interest by voluntary transfer from the defendant, should not be permitted to stand in his place, in respect to the right to question the validity of an attachment.
The objection that the motion cannot be made by a person who has acquired an interest in part only, of the attached property, is not tenable. The relief in such case, will be limited to vacating the attachment as to such part. The plaintiff in the attachment cannot complain, because the attachment is not set aside in toto. It is true, he may be subjected to similar applications in behalf of other parties who may have acquired distinct interests, but this is not a legal ground for denying the remedy.
The plaintiff was not entitled to read affidavits in support of the attachment other than those on which it issued. The affidavit of Sherwood was confined to the purpose of showing his right to move, and of excusing his delay. It did not controvert or avoid any fact stated in the papers upon which the attachment was granted, and did not bear upon the merits. ( Steuben Co. Bank v. Alberger, 75 N.Y. 179.)
The order should be affirmed.
All concur, except FOLGER, Ch. J., absent.
Order affirmed.