¶1(dissenting). I think the order appealed from should be reversed, and the motion to vacate granted. The motion to vacate was based upon the same papers upon which the warrant was granted, and the moving party had the right to have the motion heard and determined upon those papers, and those alone. The plaintiff could not make use of the complaint for the *298purpose of sustaining the attachment, because the complaint was not verified until several days after the warrant was issued. The prevailing opinion conceded that the complaint was improperly considered, and that this appeal must be determined as though it had not been used. If the complaint had not been considered by the learned justice sitting at special term, I am unable to see how we can tell what conclusion he would have reached, or what decision he would in that case have made.
¶2But, independent of this, it seems to me the attachment should be vacated. Section 641 of the Code of Civil Procedure provides that a warrant of attachment must briefly recite the ground (not the grounds) upon which it is granted. Section 636 provides that, in order to procure a warrant of attachment, the plaintiff must show by affidavit, to the satisfaction of the judge granting the same, -that a cause of action exists either for the breach of a contract, express or implied, other than a contract to marry, or for the wrongful conversion of personal property, or for an injury to person or property in consequence of negligence, fraud, or other wrongful act. The warrant of attachment here did not recite the ground of the attachment, unless a recital of all the grounds upon which an attachment could in any event be granted may be said to include that. The warrant recited:
“It appearing by affidavit to the satisfaction of the judge granting this warrant that a cause of action exists in said action in favor of such plaintiff, and against such defendant, for the recovery of $4,000, with interest thereon from the 1st day of December, 1895, as damages for the wrongful conversion of plaintiff’s personal property, to wit, $4,000, and injury to the plaintiff’s personal property on account of the fraud of the said defendant, and the breach of a written contract by the said defendant, other than a contract to marry, and the ' said defendant has wrongfully converted the personal property of the said plaintiff, and the said defendant- is about to dispose of her property with intent to defraud her creditors, and injury to the plaintiff’s personal property in consequence of the defendant’s fraud, upon which grounds this warrant is granted.”
¶3This recital does not state the ground upon which the warrant was granted, and it does not comply either with the letter or spirit of section 641. A person whose property is summarily taken from him by a warrant of attachment is entitled to know the specific ground upon which the warrant has been granted. The remedy is a harsh one, and the statute requiring the ground of the attachment to be stated is the warrant is imperative in form, and it ought to be strictly construed, as against the party who invokes its aid.
¶4For these reasons I dissent from the opinion of Mr. Justice IN-GRAHAM.
¶5VAN BRUNT, P. J., concurs.