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Maniscalco v. Slamowitz

Appellate Division of the Supreme Court of New York, Second Department
Jan 10, 1908
123 App. Div. 690 (N.Y. App. Div. 1908)

Opinion

January 10, 1908.

Jacob M. Leibner, for the appellant.

Joseph Gans, for the respondent.


The motion to vacate the order of arrest was made on the papers on which it was granted, and hence the two new affidavits of the plaintiff could not be read in opposition (Code Civ. Pro. § 568). One of the affidavits on which the order of arrest was granted purported to be by the plaintiff, but was in fact signed by another, and the jurat attested that he swore to it. It was thus a nullity. It was corrected after the notice of motion to vacate the order of arrest was given, and it and a new affidavit by the plaintiff explaining the error are the two affidavits which the order of resettlement directed to be recited as having been read in opposition. They could not be read any more than any other affidavits.

The appellant also argues that the order denying the motion to vacate the order of arrest should be reversed, but there is no notice of appeal from that order in the record.

The order of resettlement should be reversed.

WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred.

Order of resettlement reversed, with ten dollars costs and disbursements, in accordance with opinion, and motion denied, with costs.


Summaries of

Maniscalco v. Slamowitz

Appellate Division of the Supreme Court of New York, Second Department
Jan 10, 1908
123 App. Div. 690 (N.Y. App. Div. 1908)
Case details for

Maniscalco v. Slamowitz

Case Details

Full title:PAUL MANISCALCO, Respondent, v . ABRAHAM SLAMOWITZ, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 10, 1908

Citations

123 App. Div. 690 (N.Y. App. Div. 1908)
108 N.Y.S. 65

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