
    Sherman S. Krellberg et al., Respondents, v. Paul Gregory et al., Appellants.
   Order denying motion to vacate warrant of attachment unanimously reversed, on the law, with $20 costs and disbursements to defendants-appellants, and, in the exercise of discretion, the motion remanded to Special Term with leave to plaintiffs-respondents to submit, within 15 days of service of the order herein, additional affidavits in support of the warrant. While the court should not attempt to decide the merits of a controversy on a motion to vacate an attachment, the attachment papers must contain evidence from which the court can determine that the ultimate facts alleged in the complaint can be substantiated (Civ. Prae. Act, § 903; Bard-Parker Co. v. Dictograph Prods. Co., 258 App. Div. 638, 640; Miller Bros. Constr. Co. v. Thew Shovel Co., 248 App. Div. 150; 151; Tripp, A Guide to Motion Practice [rev. ed.], § 132). The papers on which this warrant issued are lacking- in several crucial matters necessary to prove a cause of action in fraud. There is insufficient evidentiary averment that the representations on which the claim is based were false at the time the representations were made. In addition, the attachment papers fail to show the facts from which plaintiffs-respondents later determined that the representations were then untrue, or that the actual pecuniary loss sustained is equal to the amount invested. In furtherance of justice, however, plaintiffs-respondents are entitled to supply the defects in the original proof by supplemental affidavits. The attachment papers suggest that there may be basis for the action and the warrant, and the defects are not of a jurisdictional nature in view of the uncontroverted ultimate facts alleged in the complaint (Civ. Prac. Act, § 822; cf. Grassi v. La Sociedad Bancauria Del Chimborazo, 213 App. Div. 629, 634-637; Tripp, op. cit., § 133). Concur — Botein, P. J., Breitel, M. M. Frank, Valente and McNally, JJ.  