Barkley v. Muller , 153 N.Y.S. 923 ( 1915 )

McLaughlin, J.:

Appeal from an order denying a motion to vacate a warrant of attachment. The motion was made upon the papers upon which the warrant was issued. The complaint, which was one of them, alleges that the appellant made his promissory note in writing, by which he promised to pay to the order of the defendant George B. Burch the sum of $2,500 four months after date; that the defendants George B. Burch and Sarah M. Burch thereafter, and before maturity of the note, indorsed, for value, a one-half interest therein and delivered the same to the plaintiff, who is now the owner and holder thereof; and that the note was not paid when due and the same was duly protested. Judgment is demanded in the sum of $1,250, with interest.

It was determined on a former appeal to this court (164 App. Div. 351) that the complaint did not state a cause of action, since the indorsee of a part of a promissory note cannot maintain an action at law thereon. (Meg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 62; King v. King, 37 Misc. Rep. 63; affd., 73 App. Div. 547; appeal dismissed, 172 N. Y. 604.) It was also determined on that appeal that a cause of action was not stated, either at law or in equity.

The plaintiff urges that the affidavits submitted with the complaint upon the application for the warrant of attachment show that he has a cause of action; that this is all that is required under section 636 of the Code of Civil Procedure to entitle the plaintiff to a warrant; and that it was unnecessary to present the complaint, so that the fact that a cause of action is not therein set forth is of no importance. Irrespective of whether or not this contention is sound, I think the warrant of attachment should have been vacated because a cause of action is not set out in the affidavits. The statement therein made is that “defendants * "" * endorsed and transferred the one-half interest therein to and delivered the same to this plaintiff.” The word “ transferred ” was not used in the complaint, but the use of such word in the affidavits does not change the cause of action attempted to be stated in the complaint. It is perfectly obvious from the context that the word “transferred” was used merely to show the fact that the plaintiff had purchased a one-half interest in the note by indorsement and not otherwise. The affidavits upon which the warrant of attachment was issued were, therefore, insufficient, and the motion to vacate should have been granted.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.