The respondents' counsel has raised the preliminary objection, that the order in question is not appealable. This objection is not well founded. The decisions cited by the counsel, apparently sustaining it, were made in cases decided prior to the amendment of the Code, made in May, 1870, by chapter 741 of the Laws of that year. That enlarged the class of appealable orders so as to include the one in question, and it was held by a majority of the court, in Leland v. Hathorn (42 N.Y. Rep., 457), to apply to an appeal from an order not previously appealable, pending when that amendment took effect. The running heading in the report would indicate that that case was decided at the March term. It was, in fact, submitted to the court at that term, but was not decided until the following June term, and the amendment was passed intermediate the submission and decision.
Assuming, then, that the appeal must, under that decision, be retained, an examination into the merits of the order appealed from is necessary.
It appears by the affidavit of one of the plaintiffs, on which the attachment was issued, that this action was commenced to recover the amount claimed to be due to the plaintiffs for goods sold by them to the defendants on a credit of three months, which had expired, and that after this credit expired the plaintiffs took a note of the defendants for that indebtedness, endorsed by Elizabeth L. North, dated February 6th, 1867, payable sixty days after its date. This note was outstanding, and had not matured when the attachment was issued (which was on the 22d day of March, 1867). The plaintiffs, however, in that affidavit claimed the note to be inoperative and void by reason of false representations alleged to have been made in relation to the means and responsibility of the endorser; but the statements in reference to such representations are made on information derived from the agent, who took the note for the plaintiffs, and by whom the negotiation for the taking thereof was conducted, without the production of an affidavit by the agent himself or any other affidavit of such representations. *Page 273
This was not sufficient to justify the plaintiffs in repudiating the note and having recourse to the original cause of action. As the note had not matured at the time of the commencement of the action and the issuing of the attachment, no cause of action existed against the defendants.
It follows that the attachment was improperly issued, and that was one of the grounds stated in the notice of motion for setting aside and vacating the attachment.
It is claimed, however, on behalf of the plaintiffs, that they had a right, in opposing the motion of the defendants, to read supplemental affidavits to sustain the attachment and remedy the defects in the affidavits on which it was originally issued. This claim is based on the fact that the motion was in part founded on an affidavit read on behalf of the defendants. That affidavit did not deny or contradict any of the allegations on which the attachment was issued. It stated that the indorser of the note was the wife of one of the defendants, that the agent who negotiated for and took it, knew that fact, and the other allegations therein tended to show that her separate estate was not bound or charged by reason of her indorsement.
The court, on the objection taken on behalf of the defendants, refused to receive such affidavits.
I find no statutory provision, and none has been referred to on the appellants' points, allowing the plaintiffs the right claimed by them.
There was an amendment of section 241 of the Code made in 1857, providing that "in all cases the defendant may move todischarge an attachment, as in the case of other provisional remedies, and the right is given in cases of orders of arrest by sections 204 and 205, and in cases of injunction order by sections 225 and 226, to apply on motion to vacate the same; and it is further provided therein, that if the motion or application be made upon affidavits on the part of the defendants, but not otherwise, the plaintiffs may opppose the same by affidavits or other proofs in addition to those on which the order of arrest or injunction was granted, but I find no such provision in reference to attachments. *Page 274
But assuming that the right to read affidavits in opposing a motion to discharge an attachment exists, they are admissible only to contradict, answer or explain those read on behalf of the defendant.
The views expressed by Judge LEONARD on the rule of practice in such cases, meet my approval. It follows that there is no ground for the reversal of the order appealed from. It must, therefore, be affirmed, with costs.