35 N.Y.S. 881 | N.Y. Sup. Ct. | 1895
The grounds upon which plaintiff applied for an attachment were that defendant had failed to meet him at Glens Falls as he had promised to, and that plaintiff saw and had a conversation with one Aronsen, in which the latter said “that said Charles Lavine, the defendant herein; that something about six months ago one Link failed at North Creek, N. Y., at the place where said Lavine is now, and was at that time, doing business; that said Link was assisted during said failure by said Lavine, and that he Was now about to assist said Lavine to sell, assign, dispose of, and secrete his property wdth intent to defraud his creditors; and that said Lavine said that he should make an assignment of all his property within about thirty days.” The statements of Aronsen, on which plaintiff applied for an attachment, were mere hearsay. The plaintiff failed to give any sufficient reason why the affidavit of Aronsen was not produced. The fact that the latter is a friend of defendant, and has done business in the town where defendant resides, was not sufficient reason. The statement that Aronsen will not voluntarily make an affidavit is evidently a mere conclusion of the plaintiff’s. He should have alleged an attempt to procure the deposition of Aronsen, and the refusal of the latter to make an affidavit. Farley v. Shoemaker (Sup.) 1 N. Y. Supp. 729; Bank v. Alberger, 78 N. Y. 252. As said by Danforth, J., in the case last cited (page 258), “It would be intolerable if the property of a citizen was liable to seizure upon such vague and inconclusive averments as are contained in the affidavits before us.” Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.