
    SUPREME COURT.
    John L. Sutherland, respondent, agt. Alonzo Broduer, impleaded with David D. McNair, appellant.
    
      Attachment—Application to vacate—On what papers it map le made and opposed— Code of Civil Procedure, section 683.
    Upon a motion, founded on the papers upon which an attachment was granted, to vacate such attachment, the justice presiding permitted an affidavit made several days after the attachment to he filed nunc pro tunc, as of the prior date, and to be read in support of the process.
    
      Held, that this ruling was erroneous, the paper not being one in any way connected with the granting of the attachment, and, therefore, was prohibited by section 683 of the Code from consideration when the motion to vacate was made.
    
      
      First Department, General Term, January, 1885.
    
      Before Davis, P, J., Beady and Daniels, JJ.
    
    Appeal from an order, denying motion to vacate attachment upon the papers upon which it was granted.
    
      Henry Thompson, for appellant.
    
      Stephen P. Hash, for respondent.
   Beady, J.

The motion to vacate the attachment was founded upon the original affidavits; that is, those upon which it was granted. On the motion to vacate the learned justice presiding permitted an affidavit, made several days after the attachment was granted, to be read in support of the process. This could not be done under section 683 of the Code. Its language is clear and positive on that subject, and the court of last resort has so declared (Steuben County Bank agt. Alberger, 25 N. Y., 179-183). The attempt to overcome this statute law by the direction to file the subsequent affidavit nunc pro tunc as of the prior date was one to accomplish indirectly what could not be done directly. It is impossible even in these days of extraordinary inventions, of triumphs in ingenuity and skill, to say with truth that a paper not in existence at the time an attachment was granted formed a part of the proofs, and to satisfy the judicial mind that it should issue. It was not, in any view that can be presented of this appeal, a paper in any way connected with the granting of the attachment, and therefore was prohibited, as we have seen, from consideration when the motion was made.

Under these circumstances, the order appealed from must be reversed and the papers remitted to the special term for a proper hearing; ten dollars costs and disbursements of this appeal allowed to the appellants.

Davis, P. J., and Daniels, J., concurred  