
    Edmund C. Whitney et al., App’lts, v. Joseph Davis et al. Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1895.)
    
    Attachment—Action in aid of.
    
    An action in aid of an attachment, issued in another action, cannot he maintained until the defendant in the attachment action is in default.
    Appeal from an order, denying plaintiff’s motion for a new trial, on the ground of surprise and newly discovered evidence.
    The opinion of Mr. Justice Haight at special term is as follows:
    The evidence in this case shows that the action was brought in aid of an attachment issued in another action, and that the defendants were not in default in that action when this action was commenced. The same question is presented in the case of First Nat. Bank of Salem v. Davis, in which case I have reached the conclusion that the action is not maintainable until such default. See my opinion filed in that case. If the conclusion I have reached in that case is sound, it follows that this action must fail, for the reason that it was prematurely brought. 1 think, therefore, that the motion must be denied. The order to be entered, however, should provide that the motion was disposed of on this ground, and without a consideration of the merits; so that, in case it should be held that my views are unsound upon this question, the case may be again remitted to the special term for a determination of the motion upon the merits. The motion for a new trial upon the ground of newly-discovered evidence is denied, with $10 costs, for the reason that the action appears to have been prematurely br.ought, and without a consideration of the motion upon the merits.
    
      Norris Morey, for app’lt; Anshy Wilcox, for resp’ts.
   Ho opinion. Order affirmed, with $10 costs and disbursements, on opinion of Haight, J., at special term.  