Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
RUMSEY, J.:
This motion was granted and the writ of attachment vacated upon the ground that the action was prematurely brought. Upon motions for relief of this kind the merits of the action will not usually be considered, and unless it is certain that the complaint is so defective that the plaintiff cannot recover in the action, the motion will be denied and the writ of attachment continued until the final determination of the action. ( Furbush v. Nye, 17 App. Div. 325; Guarantee Savings Loan Co. v. Moore, 35 id. 421.) The application of this rule requires that this order should be reversed and the motion to vacate the attachment denied. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Van Brunt, P.J., O'Brien, Ingraham and McLaughlin, JJ., concurred.