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Digest.

lease the attached property by a tends to do what the law permits. bond. They can move to vacate (Id.) the attachments. They can defend on the ground that the court issu- 7. A purchaser, from a defendant ing the attachments has no juris- in an action, of certain property diction. If such creditors sue in against which an attachment has the wrong couri, it is not the pro- been issued, may, under section vince of a court of equity to bring 682 of the Code of Civil Prothem in as parties to answer an cedure, move to vacate the attachallegation to that effect and to ment. (Trouc's Printing and Bukhave their suit arrested. (Field- binding Company agt. Hart, ante,

ing agt. Lucas et al., ante, 134.) 190.) 3. It matters not what a person be- | 8. The attachment was properly valieves or disbelieves, the applicant

cated, on the ground that the for an attachment under subdi

affidavit did not show that the vision 2 of section 636 of the Code

plaintiff was entitled to recover a of Civil Procedure, must show by

sum stated therein over and above proof of facts known to the wit

all counter-claims known to him nesses who testify to them, that

(Coire of Civil Procedure, ste. 636). the belief in the intent to defraud

(Ia.) by a disposition of the property is well founded. In other words the 9. Where the motion to vacate the intent so to defraud must be a fair attachment is made upon the paand logical sequence from facts person which the warrant is proved. (Elison agt. Bernstein, granted, the plaintiff cannot put ante, 145.)

in additional affidavits in support

of the attachment. (Id.) 4. It is not enough that a witness is

willing to testify to a fact posi- 10. Where an application is made tively; he will not be allowed to to vacate an attachment founded so testify, when it is plain that he only upon the papers upon which can have no actual knowledge on the warrant was granted, an order the subject. The sources of in- denying such application is apformation must be given, so that pealable to the general term. the tribunal called upon to act can Achelis et al. agt. Kalman, ante, see that the facts sought to be 491.) proved are established by legiti. mate testimony. (ld.)

11. On such appeal the general term

must exercise the same supervision $. The facts (even if true), that the over the motion that the judge to

defendant was insolvent when he whom it was originally made could made the purchases, that he bought have done. The general term more goods than he needed, and must consider as to whether there that he failed to disclose his in- is sufficient in the papers to jussolvency in the absence of any lify the issuing of the attachment, false statements, are not sufficient not whether there was jurisdicto show any intent to defraud. tion. (Id.) (Id.)

12. Where the facts set forth in the 6. Nor is it any evidence of intent affidavits, upon which the attach

to defraud, that the defendant re- ment was granted, were that the fused to secure the plaintiffs; so defendant purchased the goods in long as the law allows preferences question August 6, 1880, on a to creditors by a failing debtor, credit of thirty days from Sepit cannot be proof of intent to tember 15, 1880; that the goods defraud, that the defendant in- was obtained by false and frauduDigest.

lent representations; stating the the firm property. (Donnell agt. negotiations which entered into Williams, 21 Hun, 216.) the sale, the representations alleged to have been made, and that 15. The failure to state, in an affida. such statements were false; shows

vit upon which an application for in what respect it is claimed they

an attachment is made, that the were false, and points out the in

plaintiff is entitled to recover the debtedness existing at the time;

sum specified therein, over and then makes a general allegation above all counter-claims known that “the defendant has assigned

to him, as required by section 636 and disposed of his property with of the Code of Civil Procedure, intent to defraud his creditors;

renders the attachment void ab that after purchasing said goods, initio. (Id.) the defendant shipped about onehalf of them to auction houses in other cities, and sold the same at 16. The complaint in this action alauction. After this allegation fol.

leged that the plaintiff and the de

fendant Walter were co-partners, lows a general charge that the defendant, on October 12, 1880,

and that the firm had become inmade a general assignment with

solvent; that the other defendants preferences:

had, by collusion with the defendHeld, that there was sufficient

ant Walter, commenced actions in the papers to justify an order

against the firm in the marine of arrest, admitting the facts in

court of the city of New York, the affidavits to be true, but there

in which attachments had been was not sufficient to justify the

issued, under which property of attachment. (Id.)

the firm had been seized; that such attachments were void, for

the reason that the firm had a 13. Where the party made an assign- place of business in the city of

ment in October, the goods being New York, though both of the bought in August, and there being members thereof resided in Kings preferences to creditors whom he

county. The relief sought was owed, the court cannot assume the dissolution of the firm, the from that fact that there was a appointing of a receiver, the fraudulent disposition of his prop- vacating of the attachment, and erty:

also that the said defendants Held, further, that the attach- might be restrained from further ment must be reversed, for the

prosecuting their actions in the reason that there was no connec- marine court: tion between the previous acts and Held, that as to the attaching the assignment to prove the as- creditor, the complaint did not signment to have been made with state facts sufficient to constitute a fraudulent intent, or to warrant a cause of action, and that it that conclusion. (Id.)

should be dismissed. (Fielding

agt. Lucas, 22 Hun, 22.) 14. Where, in an action brought

against a firm, consisting of two 17. An attachment which has become members, an attachment is issued, invalid by reason of the failure of and thereafter one of the partners the plaintiff to serve the sumis personally served with the sum- mons, either personally or by pubmons, but the other is not, nor lication, within thirty days from are proceedings to him the time it was issued, is not retherewith by publication com- vived and rendered valid by the menced within the thirty days subsequent appearance of the derequired by the statute, the at- fendant in the action. (Blossom tachment ceases to be a lien upon agt. Estes, 22 Hun, 472.)

serve

Digest.

18. Upon the return of an attach- no complaint demanding it was

ment against defendant for an served: alleged contempt in disobeying Held, untenable; that if the the provision contained in a judg. judgment was erroneous in this ment of divorce herein, which respect it should have been correquired him to pay alimony and rected on motion to vacate or to give security for the payment modify. (Id.). thereof; and upon motion to vacate the attachment the court 22. Also, held, that plaintiff was not adjudged him to be in contempt, estopped from enforcing, in this and ordered him to pay a fine, to manner, payment of alimony, by give security in a specified amount the fact thai the judgment authorfor future alimony, and to stand ized an execution to be issued. committed until compliance with (Id.) the order:

Held, that the whole matter was 23. It was objected that no compebefore the court and it had juris- tent order was made for the is. diction to grant such relief. suing of the attachment; this ob(Park agt. Park, 80 N. Y., 156.) jection was not raised at special

term. Upon the attachment was 19. The attachment was issued upon

an indorsement signed by the proof of service of copy of the

clerk of the court stating that it judgment, with demand of pay

was issued by special order of the ment of the alimony in arrear,

court: with the costs, and the giving

Held, that the presumption security as required by the judg.

was that such an order had been ment, and proof of defendant's

made; but in any event, as the failure to comply therewith: objection was not raised below, Held, that the papers served

it was not available here. (Id.) were sufficient to authorize the issuing of the writ (Code of Civil Procedure, sec. 14); that the judg

ATTORNEY. ment contained all that was necessary to advise defendant of the 1. A receiver in supplementary pronature of the claim made against ceedings may employ on his behim. (Id.)

half the attorney of the party for

whose benefit the proceedings 20. Defendant claimed that the at. are instituted (Overruling Branch

tachment should have been vacat- agt. Branch, 49 Hou., 196; and ed, because based on his refusal Cumming, Receiver, agt. Edgerton, to pay costs:

9 Bosu., 685). (Baker agt. Van Held, untenable as it was issued Epps, ante, 79.) for disobedience to the lawful mandate of a court” (Code Ciril 2. The attorney has a lien upon the Procedure, sec, 14, sub. 3); and papers in the suit, which cannot that the provision of the statute be divested without payment, but of 1847 (sec. 2, chap. 390, Lars he has no lien upon the client, and of 1847), prohibiting imprison- cannot prevent him from employ. ment for contempt in not pay. ing another attorney to represent ing costs, had no application. him. (Prentiss agt. Livingston et (Id.)

al., ante, 380.) 21. The action was commenced by 3. Where motion was made by de

the service of a summons; defend- fendants for substitution of a new ant did not appear; it was ob- attorney: jected that the court had no juris- Held, that the motion should be diction to decree alimony, because granted; but if the defendants

Digest.

desire the papers in the possession into court on attachment, in proof their attorney they must first ceedings to punish for contempt, discharge his lien. If this relief he may be represented by attoris not insisted upon the order for ney in the subsequent proceedsubstitution must provide that ings. (Watrous agt. Kearney, 79 the taxable costs in the action to N. Y., 496.) the present time (if collected upon a favorable termination of the ac- 8. An order punishing defendants tion) be paid to the present attor- for contempt was granted by deney of the defendants, to whom fault. On motion to vacate the they equitably belong. (Id.) order, it was alleged, in the mov.

ing papers that the attorneys who 4. The amendment to section 66 of appeared for the defendants in the Code of Civil Procedure,

the proceedings had no authority. passed in 1879, gives to the attor

The attorney who appeared on ney of record, from the com

return of the attachment made af. mencement of an action or the

fidavit that he was authorized; . service of an answer containing a

the defendants were also personcounter-claim, a lien upon his ally present; the same attorney client's cause of action or counter

appeared before the referee, to claim, which attaches to a verdict,

whom it was referred, to take report, decision or judgment in

proofs. Notice of motion for final his client's favor, and the

proceeds

order was served on, and service thereof, in whosoever hands they

admitted by, attorneys who had may come, and cannot be affected appeared for defendants in the by any settlement between the action, and who had also admitted parties before or after the judg

service of the referee's report: ment. (McCabe agt. Fogg, ante,

Held, that as the attorneys thus 488.)

undertook to represent defend

ants, the mere allegation of want 5. But no new remedy is provided

of authority so to do did not in. for the enforcement of the lien,

validate the order. (Id.) and, in order to make it available in the case of a settlement before 9. As to how far the right of lien of judgment, the attorney, while he an attorney for costs will stand in need no longer prove fraud or

the way of a set-off of a judgcollusion, must still go on with ment, sought in an equitable the litigation until judgment,

action, quere. (Davidson agt. Al. which is to be perfected for cost

faro, 80 N. Y., 660.) only. (Id.) 8. Semble, that under section 66 of ATTORNEY AND CLIENT.

the Code of Civil Procedure, as amended in 1879, the attorney for 1. One Foster, the owner of a lot & defendant, in whose favor a upon which was a mortgage for judgment for costs has been en- $1,000, owned by one Root, and tered upon the dismissal of the one for $500, owned by one complaint, acquires a lien thereon Crosby, entered into negotiations for his compensation, which is with the defendant Wright, for superior to the right of the plain. the sale of the lot to him, subject tiff to set off a prior judgment in to the Root mortgage, upon the his favor, whether he seek to en- agreement that he should pay the force such right upon a motion or Crosby mortgage.

While the by an action. (Ennis agt. Curry, negotiations were pending, Fos22 Hun, 584.)

ter, Crosby and Root each called

upon one Howe, an attorney, and 7. Where a party has been brought requested him to draw such papers

Digest.

con

as might be necessary to carry ing been made in good faith beout the agreement between them, tween the parties, it was, as which he did. Thereafter Foster against the plaintiff, a bar to the conveyed the lot to Wright by a further prosecution of the action deed, containing a clause by which by her, or to her suing again for the latter assumed the payment of the same cause of action. (Jur. the Root mortgage.

Wright also ray agt. Jibson, 22 Hun, 386.) agreed to and did thereafter pay and discharge the Crosby mort. 3. That so far as the rights of the gage. In an action to foreclose the

plaintiff's attorneys were

cerned, they must be enforced in Root mortgage, and hold Wright liable for any deficiency that

proceedings to be instituted by

them and in their own name. (Id) might arise on a sale, he claimed that the deed, though absolute on 4. Code of Civil Procedure, section its face, was intended as a mort

66, as amended in 1879 — when gage, and that he was not liable, upon the covenant, for the assump

an attorney must have given no

tice of the assignment of a part tion of the Root mortgage con- of the recovery to him in order tained therein:

to justify his moving to set aside Held, that the relation of attor

a settlement entered into between ney and client did not exist be

the parties. (See Jenkins agt. tween Wright and Howe, so as to

Adams, 22 Hun, 600.) render the testimony of the latter as to the declarations and acts of 5. Action by an attorney for profesthe parties relating to the agree- sional services — when it involves ments entered into between them

the examination of a long acinadmissible, under section 8:35 of

count — when it may be referred the Code of Civil Procedure.

to an attorney to hear and determ(Root agt. Wright, 21 Hun, 344.)

ine. (See Carr agt. Berdell, 22

Hun, 130.) 2. The plaintiff, a married woman,

having brought this action, under 6. Every communication which a the civil damage act, to recover client makes to his legal adviser the damages resulting from the for the purpose of professional intoxication of her husband, al- aid or advice is protected. (Bucon leged to have been caused by liquor agt. Frisbie, 80 N. Y., 394.) sold to him by the defendant, the same was, after issue joined and 7. Although an attorney,when called before trial, settled by the parties, as a witness as to communications the defendant paying to the plain- made to him, disclaims that he tiff thirty dollars, and each party was acting in a professional caagreeing to pay their own costs. pacity, that is a matter for the The plaintiff executed to the de- court to determine from the facts fendant a release of the cause of appearing. (Id.) action, under seal, and a stipulation, upon which an order discon- 8. It is not essential to bring the tinuing the action was entered. case within the statutory prohiThereafter, upon an application bition that a fee was paid at the made in the name and behalf of time of the communication, or the plaintiff, an order was made that a suit was pending or consetting aside and vacating the set- templated; if the communication tlement and discontinuance, upon was in the course of any profesthe ground that it was made in sional employment, related to the fraud of the rights of the plain- subject matter thereof, and may tiff's attorneys:

be supposed to have been drawn Held, that the settlement hav. out in consequence of the relation

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