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Peet v. Hatcher.

Motion for an order restraining the defendant from removing or disposing of or interfering with his property during the pendency of this action, and especially restraining him from removing or disposing of or interfering with any money due to him by any person within the jurisdiction of the court and from removing or disposing of or interfering with certain certificates of stock of the Georgia Construction Company.

This action was brought upon an account stated between the plaintiff and the defendant to recover the sum of $17,461.10, balance of moneys advanced by the plaintiffs to and for the account and use of the defendants at his request between May 30, 1885, and December 21, 1885, in buying and in selling cotton as brokers for the defendant and for expenses incurred in connection with such transactions. The summons and complaint were personally served on the defendant on January 4, 1888. Motion was made upon the summons and complaint setting forth these facts and also an affidavit showing that the defendant was a non-resident of the city of New York, and resides in Columbus, in the State of Georgia, and also averring that the defendant was the owner of a share of stock of the Georgia Construction Company, of the par value of $5,000, and of the market value of about $7,500, and that he had purchased upon credit, cotton to the extent of 10,000 bales upon which there was a profit of over $50,000; that he intended to depart from the State and return to Columbus, Georgia, and to take such profits with him and such shares of stock with him with the intent to defraud the plaintiffs, and contained statements of conversations had with the defendant substantiating such averments.

The affidavit of the defendant, in opposition to the motion, denied the conversation set forth in the moving papers to support the contention that he intended to depart from the State and to take his property with him

Peet v. Hatcher.

for the purpose of defrauding these plaintiffs, and alleged that whatever statements he made were made in relation to business of his wife; it also appears from the answering affidavits that on January 4, 1888, the plaintiffs cause an attachment to be levied on all the property of the defendant in the hands of and all debts due to him by James H. Parker, a cotton broker in the City of New York, and has also served a copy of the attachment upon the wife of the defendant.

Edward S. Clinch, for plaintiff and motion.

The motion for an injunction is made under Code of Civil Procedure, section 604, subdivision 2 . . . The plaintiff having a specific lien upon the property attached, have the right to any remedial order that will protect them from against any destruction.

In Frost v. Mott, 34 N. Y. 253, the court held "that a party attaching property in the possession of his debtor, acquires a specific lien on his interest therein and is entitled, like a judgment creditor, to impeach the title of a fraudulent mortgagee."

See also Rinchey v. Stryker, 28 N. Y. 45; Kelly v. Lane, 42 Barb, 594; Thurber v. Blanck, 50 N. Y. 80. The levy of a judgment creates a specific lien sufficient to authorize an affirmative action for the protection of the lien. (Greenleaf v. Mumford, 30 How. Pr. 30), and if he can maintain an independent action because of this lien he is certainly entitled in an action in which the writ issues to any order the court has power to make to protect that lien during the pendency of the action.

T. Henry Dewey, for defendant, opposed.

PATTERSON, J.-The application for the injunction in this case is based upon sub. 2 of sec. 604 of the Code of Civil Procedure. Under that subdivision an injunction in a proper case would go against specific property, or any

Peet v. Hatcher.

property in the hands of the defendant or his agents, but it must be made to appear that the defendant has property upon which an injunction would act. Here the affidavits interposed on behalf of the defendant show that the property mentioned in the moving papers belongs to Mrs. Hatcher, and not to the defendant, and she shows further that she received it from other sources and not from her husband. General reflections upon the improbability of a woman engaging in cotton speculations cannot prevail against positive oaths accompanied by circumstantial details of ownership. The authority for this injunction is contained in the section of the Code referred to. It cannot be upheld as an aid to an attachment. A proceeding is established by law to make an attachment effectual. It cannot be done in this application.

Motion to continue the injunction denied, with $10 costs.

INDEX.

Page

ABATEMENT OF ACTION—An action abates when it is de-
feated or fails and the legal power to continue it is terminated.. 377
Action in district court abates upon the failure of justice to
decide it within time allowed therefor....
ACCOUNT-Where original is verified, further must be.......

377

1

When evidence excluded for failure to serve copy of account
upon demand.....

43

Order excluding evidence for such failure, when necessary... 43
See BILL OF PARTICULARS.

ADMINISTRATOR-See CONTEMPT.

ALIMONY-See CONTEMPT.

ALLOWANCE-See COSTS.

AMENDMENT-Provisions of Code of Civil Procedure relating

to amendments in courts of record apply to surrogate's courts... 171
Court should disregard error or defect in proceedings not af-
fecting substantial rights......

......

Test of the propriety of an amendment of proceedings, etc.,
stated.....

171

171

Effect of order extending time to plead, after such time has
expired.....

152

See PLEADING.

APPEAL When court improperly refuses to discharge impris-
oned debtor on ground that execution was not issued in time
the remedy is by appeal and not by habeas corpus....... ... 209
Does not lie from order sustaining demurrer to complaint.... 359
Time to, how computed in courts not of record....

147

When Sunday excluded.....

147

Findings of jury on disputed facts not disturbed.......

361

When judgment reversed on, for refusal to postpone trial.... 227
On appeal from taxation of sheriff's fees the party taking the
appeal is concluded as to items to which he did not object on the
taxation.....

202

The granting of a stay and the security to be given as a con-
dition thereof pending an appeal from an interlocutory judg-
ment is in the discretion of the court.....

Where a client has settled an action and his opponent there-
after moves to discontinue, and his attorneys oppose on the
ground that they have a lien upon the cause of action for their
fees, an appeal from an order granting such motion should not
be taken in the name of the client....

From Justice's Court-When properly taken from judgment
of justice's court......

May be taken from determination of justice of district court,
refusing to sign order removing case therein to court of com-
mon pleas.....

Appeal to county court from justice's court should not be dis-
missed because new trial improperly granted.....

Page

220

323

246

134

92

.... 92

A demand in a notice of appeal from a justice's court for a
new trial does not alone secure that remedy...

When county court vested with jurisdiction of appeal from
justice s court....

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When new trial on appeal from justice's court to a county
court denied, although counter-claim exceeded $50......

From justices court must be taken within twenty days after
entry of judgment in justice's docket excluding the day of
entry, and the last day, where it is Sunday. . . . .

....

92

147

See COSTS; JUSTICE'S COURT; UNDERTAKING.
ARBITRATION-Submission to, cannot be made irrevocable
either at common law or under the Code of Civil Procedure..... 301
-Submission to, may be revoked at any time by any one of two
or more parties on the same side, and this although the motives
actuating such party are improper...
ARREST-Rule as to contents of affidavit upon which granted,
applies to action for slander......

... 301

Affidavit upon which granted must be positive and make out
a prima facie case and must satisfy the judge judicially that cause
of action and of arrest exist.....

Where material allegations upon which order of arrest is
granted are upon information and belief, sources of information
and grounds of belief, together with reasons why affidavits of
informants can not be obtained, must be stated......

445

445

445

An order of arrest should be vacated where affidavits upon.......
which it was granted are solely upon information and belief.... 445
- It is not necessary that motion to vacate order of, because of..
insufficiency of affidavit, should be made returnable before judge
who granted it............

......

A defendant arrested in an action of replevin may be admit-

445

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