I dissent from the conclusion at which the court has arrived in the case at bar. It is establishing a new practice which, so far as my observation goes, has never obtained, and which differs materially from that which has long prevailed under the Code in reference to motions respecting orders of arrest, orders of injunction, and warrants of attachment. In those cases, although the language of the Code is that an application to discharge such provisional remedies may be made, upon the papers or upon proof by. affidavits, by the defendants, it has uniformly been held that an application to discharge such order or warrant because of the insufficiency of the papers did not preclude the making of a motion upon affidavits. The only authority to the contrary *225of this practice is the one cited in the opinion of the court (Lovell v. Martin, 21 How. Prac. 238), which was the case of an order of arrest. But this decision has never been followed, and the court has been so careful to guard the rights of the parties to move upon the papers, and if such motion is denied then to move upon affidavits, that, although the language of the Code in all of the three instances except one would seem to indicate that one or the other method of procedure should be chosen, yet both motions have always been allowed as matter of right. In respect to orders of injunction the Code (section G27) expressly provides that both motions may be made. In respect to warrants of attachment and orders of arrest the word “ór” has been considered to mean “and”; and there seems to be no reason, in regard to remedies of the character sought in this proceeding, why a different rule should obtain than that which has long prevailed in reference to the provisional remedies mentioned.
I think, therefore, that the order appealed from should be reversed, and the motion should be'heard upon its merits.