Whitney v. Davis 35 N.Y.S. 531, 88 Hun. 168

(88 Hun, 168.)

WHITNEY et al. v. DAVIS et al.

(Supreme Court, General Term, Fifth Department.

June, 1895.)

Attachment—Action in Aid op—Default op Dependant.

An action in aid of an attachment can be brought only where defendant is in default in the attachment suit.

Appeal from special term, Erie county.

Action by Edmund C. Whitney and August Beck, as sheriff of Erie county, against Joseph Davis and others. From an order denying plaintiffs’ motion for a new trial, on the ground of surprise and newly-discovered evidence, plaintiffs appeal. Affirmed.

The opinion of Mr. Justice HAIG-HT at special term is as follows:

*532The evidence in this case shows that the action was brought in aid of an attachment issued in another action, and that the defendants were not in default in that action when this action was commenced. The same question is presented in the case of First Nat. Bank of Salem v. Davis, in which case I have-reached the conclusion that the action is not maintainable until such default. See my opinion filed in that case. 35 N. Y. Supp. 532. If the conclusion I have reached in that case is soúnd, it follows that this action must fail, for the reason that it was prematurely brought. I think, therefore, that the motion must be denied; The order to be entered, however, should provide that the motion was disposed of on this ground, and without a consideration of the merits; so that, in case it should be held that my views are unsound upon this question, the case may be again remitted to the special term for a determination of the motion upon the merits. The motion for a new trial upon the ground of newly-discovered evidence is denied, with $10 costs, for the reason that the action appears to have been prematurely brought, and without a consideration of the-motion upon the merits.

Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.

Norris Morey, for appellants.

Ansley Wilcox, for respondents.