
    SUPREME COURT.
    Edward Reilly agt. George H. Sisson.
    
      Attachment—When it should, be vacated because of the insufficiency of the affidamt upon which it was granted.
    
    Upon the application of the plaintiff an attachment was issued against tho property of the defendant upon an affidavit made by the plaintiff, in which it was alleged that defendant was indebted to him in the sum of $6,000, over and above all counter-claims, for damages for a breach of a contract, express or implied, and that such indebtedness arises-upon the following facts: That at sundry times since April 1,1883, up to and including this date, November 5, 1883 (upon which day the attachment was granted), the plaintiff, at the special instance and request of the defendant, loaned and advanced to him sums of money, amounting in all to the sum of $6,000, which he promised and agreed to repay, but no part of which has been repaid:
    
      Held, that the affidavit was insufficient; that if the affidavit is true a portion of the loan was made the day the attachment was issued, and therefore no proof of contract was shown and the attachment should he vacated.
    
      At Chambers, December, 1883.
    Motion to vacate an attachment against tüe property of the defendant as a non-resident debtor.
    The plaintiff in his affidavit on which the attachment was granted alleges that the defendant was indebted to him in the jnst and full sum of $6,000, over and above all counter-claims, for damages for a breach of a contract, express or implied, other than a contract to marry, and that such indebtedness arises upon the facts stated ; and the facts are these: That at sundry times since April 1, 1883, up to and including this date, namely, the 5th day of November, 1883, upon which day the attachment was granted, the plaintiff, at the special instance and request of the defendant, loaned and advanced to him sums of money, amounting in all to the sum of $6,000; which he promised and agreed to repay, hut no part of which has been repaid.
    
      
      Morris Goodhart, for plaintiff.
    
      Stern & Myers, for defendant, for the purpose of this motion only.
   Lawrence, J.

— The affidavit on which this attachment was issued seems to me to he subject to the criticism which was made by the general term of this department upon the affidavit in Smith agt. Davis (29 Hun, 306); see, also, Pomeroy agt. Ricketts (28 Hun, 308). Again, if the affidavit is true a portion of the loan was made on the day the attachment was issued. Therefore I do not think that a breach of the alleged contract was shown (See my opinion in Smadbeck agt. Sisson, ante, 220.) See, also, generally as to the particularity required in stating the plaintiff’s claim on an application for an attachment, Skiff agt. Stewart (39 How. Pr., 385); Ruppert agt. Haug (87 N. Y., 141).

The motion to vacate the attachment will be granted, with ten dollars costs.  