
    SANBORN a. THE ELIZABETHPORT MANUFACTURING COMPANY.
    
      Supreme Court, First District ;
    
    
      At Chambers, November, 1861.
    Discharge of Attachment.
    An application by a defendant, under sections 240 and 241 of the Code, for the discharge of an attachment issued as a provisional remedy, is purely exporte.
    
    If the judge has directed that the plaintiff have notice of the application, and the applicant fails to appear at the time specified, the judge cannot dismiss the application with costs.
    ' Motion to vacate an ordeiy dismissing an ■ application under section 240 of the Code.
    In fhis action an attachment was issued against the property of the defendants, as' a foreign corporation, which was levied on moneys belonging to defendants in the hands of the sheriff of Hew York. The defendants gave two days’ notice of an application to be made at chambers, to discharge the attachment, on giving security as required by section 241 of the Code. On the day specified the plaintiff took an order, in the absence of the defendants, dismissing the application, with $10 costs to plaintiff.
    The defendants now moved to vacate this order.
    
      James W. Culver & Brother, for the motion.
    Pennington, Sullivan & Harrison, opposed.
   Barnard, J.

—The application by defendants to discharge the attachment under sections 240 and 241" is purely ex parte.

Equally so with the plaintiff’s application for the warrant. The Code nowhere gives the plaintiff any right to except to the sureties offered by the defendants.

The defendants’ attorney, in his affidavit, says, that he gave notice, because judges have usually required the defendant to give some short notice to the plaintiff. If such'requisition has been made, it was not because the plaintiff was entitled thereto, but that the judge desired the plaintiff to be present as amicus -• curies to give the court such information as he may have respecting the sufficiency of sureties, so that, if the circumstances require, greater caution may be exercised by the judge in testing the sufficiency of the sureties. The application to discharge not being a motion of which plaintiff is entitled to. notice, or which he is entitled, as matter of right, to appear and oppose, he has no right, when requested to appear as amicus cw'iee, to move for and take a dismissal of the application, with costs.

If the judge deems it proper that the plaintiff should be present as amicus curies, and gives direction that he should be notified to be present, then, if the applicant is not present at the specified time, the judge may direct another notice to be given before passing on the application; but he cannot dismiss the application, with costs.

As the plaintiff is only to attend as amicus curies, I see no objection to his giving his views to the judge, in the absence of defendant, in case defendant is not present at the specified time; and when the defendant appears, the judge will be possessed of

all the information he requires, and will act on the application, without the presence of plaintiff. The dismissal of the application, with costs, must be vacated, and set aside, and the plaintiff be at liberty to present his application ex-parte; and if the judge, to whom the application shall be presented, shall require notice to be givén the plaintiff tó attend as amicus curice, then the plaintiff must comply with such directions as the judge may give.

Motion granted.  