Thames & Mersey Marine Insurance v. Dimmick

1. Attachment—Motion to Set Aside—Additional Affidavits. Where a motion to set aside an attachment is founded solely on objections to the papers on which the attachment was granted, additional affidavits in support of the attachment will not be received. 2. Same—Affidavit — Leaving State with Intent to Defraud Creditors. An attachment recited that it was issued on the ground that defendant, “a resident of this state, had departed therefrom with intent to defraud his creditors.’’ Affidavits tiled in support of the attachment showed that defendant had been convicted on a criminal charge; that the conviction was reversed by the general term, and afterwards the order of the general term was reversed by the court of appeals) and the conviction was affirmed; that, about 1 o’clock on the day of the decision by the court of appeals, defendant went to the office of his counsel, where he remained three or four minutes, and whence he went directly to Canada. Held, that such affidavits did not show that defendant had left the state with intent to defraud his creditors, but rather that he had heard of the decision against him, and had fled to escape punishment. 3. Same—Motion to Vacate. Under Code Civil Proc. §§ 682, 683, providing that a motion to vacate an attachment “may be founded only upon the papers upon which the warrant was granted,” or “upon proof by affidavit on the part of the defendant,” an attachment will not be vacated because of an erroneous recital as to the ground thereof. '4. Same—Erroneous Recitals—Amendments. An attachment recited as the ground thereof that defendant, “a resident of this state, has departed therefrom with intent to defraud his creditors.” It appeared, however, that he had left the state to escape imprisonment for a crime of which he had been convicted, and had permanently taken up his residence in another country. Bold, under Code Civil Proc. §§ 721-723, providing for the correction by amendment of irregularities in any process, pleading, or other proceeding, that plaintiff would be allowed to amend the attachment by stating defendant’s nonresidence as the ground.

Appeal from special term, Erie county. Action by the Thames & Mersey Marine Insurance Company, Limited, against Lorenzo Dimmick. Defendant died pending the action, and it was continued against Kate E. Dimmick, as executrix. A motion by the Continental Insurance Company, a subsequent attaching creditor, to vacate plaintiff’s attachment, was denied, and the Continental Insurance Company appeals.