
    Yette Thalheimar v. Ferdinand Hays and Jacob Thalheimar—Sallie Frankel v. Ferdinand Hays and Jacob Thalheimar.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed September, 1886.)
    
    1. Attachment — Motions to vacate—When they do not conflict WITH EACH OTHER—CODE ClVIL PROCEDURE, §§ 683, 683.
    Attachments having been granted against the defendant’s property, a creditor of the defendant obtained a judgment, and issuing an execution thereon put it in the hands of the sheriff; subsequently the judgment creditor made a motion to vacate the attachments founded upon the affidavits upon which the attachments were granted, and proceeding upon the ground that the affidavits were insufficient in matter of substance, and that the officer acquired no jurisdiction over the subject matter; afterwards, and before the determination of this motion, the judgment creditor made another motion for the same purpose based upon affidavits disproving the-grounds upon which the attachments were issued. Previous to the determination of this motion, the first motion was dismissed; upon the granting of the second motion, it was urged by the plaintiffs that the final determination of the first motion after the making of the second superseded the latter, and it was in effect a rehearing .of the same question and irregular. He’d, that the judgment creditor might, under the provisions of Code Civil Procedure, § 683, as a matter of right, move to dismiss the attachments upon the merits, founding his application upon affidavits disproving or explaining the case made by the plaintiffs, although a motion to vacate had been denied founded upon the plaintiff’s affidavits used in procuring the attachments.
    3. Same—Res adjudicata—Application of the doctrine.
    The doctrine of res adjudicata does not apply with the same strictness to-decisions in interlocutory motions as it does to judgments.
    3. Same—Admission of incompetent affidavit—Effect of.
    Upon the argument of the latter motion to vacate the attachments, am incompetent affidavit was admitted against the plaintiffs’ objection. Held, that the facts stated in this paper being substantially stated by other witnesses, and the moving party having made out a case for the vacating of the attachments independently of it, the order should not be reversed for the error in permitting it to be read.
    4. Affidavits taken without the state — Code Civil Procedure, § 844—Waiver of objections to papers improperly made part of the record.
    Several affidavits taken without the state having been read upon the argument of the motion against the appellant’s objection that thej were not properly certified, there being attached to the original papers, certificates in full compliance with Code Civil Procedure, § 844, and these original certificates having been taken from the files and on the argument of the appeal exhibited to the court for its inspection for the purpose of meeting the objections, and no objection being made that they were improperly made part of the record, it was assumed that they were so attached with the consent of the parties or by the order of the court.
    In each of these actions the plaintiff on the 7th day of July, 1884, procured attachments against the property of the defendants on the ground that they had disposed and secreted, and were about to dispose of and secrete their property with an intent to defraud their creditors. On the 8th of July, 1884, Susselia Hays, wife of the defendant Hays, procured and docketed a judgment against the defendants for 'the sum of $13,000, and issued execution thereon and placed the same in the hands of the sheriff. On the day following she procured an order requiring each of the plaintiffs to show cause at a special term on the eleventh of July, why the said attachments should not be vacated. The final hearing of the motion, was heard in December and in January 1885, the motion was denied with costs.
    On the 11th day of December, 1884, Susselia Hays made another motion, which came on to be heard on the 19th of December, 1884, at a special term, to set aside and vacate the said attachments, the hearing of which was postponed from time to time and was finally heard and disposed of on the 26th of February, 1886, vacating both of said attachments. From the last named order the plaintiffs have appealed.
    
      J. & Qf Van Voorhis, for pl’tffs; J. B. Perkins, for Susselia Hays.
   Barker, J.

The appellants contend that the making the first motion and the final determination thereof, after the making of the second motion superseded the motion last made and was in effect a rehearing of the same question and for those reasons was irregular and erroneous, and should have been denied upon that ground. The intervening creditor, Susselia Hays, contends that each motion was made upon separate and distinct grounds and could be separately made and prosecuted at the same time with strict regularity. Her position is, that the first motion was founded upon the affidavits upon which the attachments were granted, and she sought to vacate the same for the reason .that the affidavits were insufficient in matter of substance and the officer acquires no jurisdiction over the subject matter; that the second motion was based upon affidavits disproving the grounds upon which the attachment was issued, and that the same were properly vacated upon the proofs refuting the case made by the plaintiffs.

If these positions are supported by the history of the case as the same appears in the record, then the denial of the first motion did not supersede the second motion, and the same remained in court to be disposed of upon the merits. The lien of the intervening creditor attached to the property after the attachments were issued and upon sufficient grounds she could apply to vacate the attachments. Sec. 682 of the Code of Civil Procedure.

Under section 683 the motion to vacate may be founded upon the application and proofs upon which the warrant was granted and can be made to the court or to the judge who granted the same, without notice; or the motion can be made upon proof by affidavit on the part of the lienor, in which case it must be upon notice and could' have been made to the court or to the judge who granted the warrant, and in that case the motion may be opposed by new proof by affidavit on the part of the plaintiff, tending to sustain any of the grounds upon which the attachment was granted, as recited in the warrant. One motion is summary in its character and is based upon the insufficiency of the proofs, and no notice is required to be given of the application on the supposition that the same was granted improvidently by the officer. The other is in the nature of a trial, where the parties produce proofs on each side of the question in dispute, and the opposing party is entitled to be heard upon notice and the questions involved may be entirely distinct from those which can be investigated in the ex parte application.

We are of the opinion that under the provisions of section 683, an interested party may, as a matter of right, move to dismiss the attachment upon the merits, founded upon affidavits disproving or explaining the case made by the plaintiffs, although a motion to vacate had been denied founded upon the plaintiff’s affidavit used in proofing the attachment. _ They are essentially different procedings. To give the section a contrary construction would greatly embarrass defendants and lienors in attachment proceedings, for they might hesitate to make a summary application unless the plaintiff’s case was defective beyond all doubt; as they would, if defeated, bar themselves of all right to proceed upon their own proofs and in a more deliberate manner. These views are supported by the suggestions made in Steuben County Bank v. Alberger (75 N. Y., 179), and, also, 83 id., 274, in a case between the same parties.

The doctrine of res adjudicata does not apply with the same strictness to decisions in interlocutory motions as it does to judgments. Courts to prevent vexation and repeated applications on the same point, have rules which preclude the agitation of the same question on the same state of facts. Belmont v. The Erie Railway Co., 52 Barb., 637; Ramsey v. The Erie Railway Co., 57 id., 450; Smith v. Spalding, 3 Rob., 515.

From the paper contained in the appeal book, we are unable to say that the first motion made was founded upon proofs made by the moving party and there are some reasons for holding that it was based only, so far as the facts are concerned, upon the plaintiffs’ affidavits. The order appealed from does not recite that the point was made on the final hearing that the previous motion had been denied, although it does state that some other objections were made by the appellants, which were overruled. Upon the final hearing the appellant also presented many objections in writing, to the granting of the motion; but the one we are now considering was not made, although the fact that the former motion had been denied by another special term was brought to the attention of the court. The question is, after all, nothing more than one of regularity in procedure and the court is governed entirely by its own rules whether the same matter shall be reheard or not.

Upon the merits, we concur with the special term in setting aside the attachments, as the proofs upon the question of the fraud of the defendants in disposing of their property is substantially the same as they were, in the case of Ignatz Thalheimar against these defendants where we.sustained an order of the special term, made by the same learned judge who granted the orders now before us, setting aside an attachment granted in that action.

On the hearing of this appeal the original record was handed up with the printed papers and by it it appears that the point is not well made that the motion was not founded upon original papers, except as to the objection to the affidavit of Abe Stiauss, which the respondent admits is only a copy of an original affidavit, which had been previously used on a similar motion in a case where the said Ignatz Thalheimar was the plaintiff. This affidavit was incompetent and should have been excluded on the plaintiffs’ objection. But it appears upon reading the other affidavits that the facts stated in this paper were substantially stated by the other witnesses and we are of the opinion that the moving party fairly made out a case for vacating the attachments independently of Strauss’s affidavit, and that the order should not be reversed for the error in permitting the copied affidavit to be read.

Several affidavits taken in the State of Indiana, were read by the moving parties over the appellant’s objection that they were not properly certified as required by section 844 of the Code. To the original papers there is attached a certificate by the proper officer in full compliance with section 844. The same purport to be made upon the 27th day of February, 1885, one day after the orders were entered granting the motion. The original certificates were taken from the files and on the argument of this appeal were exhibited to the court for its inspection, for the purpose of meeting this objection, and at that time the appellant made no claim that the certificates had been improperly made part of the record. We may, therefore, properly assume, that they were so attached with the consent of the parties or by an order of the court.

We have examined each of the other points named upon the argument .or as found in the appellant’s printed brief and we fail to discover any such error or irregularity as should lead to the reversal of the judgments.

The orders appealed from are affirmed with costs and disbursements in one of the cases.

All concur.  