12 N.Y.S. 901 | N.Y. Sup. Ct. | 1891
Under section 2906 of the Code of Civil Procedure the plaintiff, in order to entitle himself to an attachment, was required to show by affida vit, to the satisfaction of the j ustice, that the defendant “ had depar , or is about to depart, from the county where he last resided, with intent to "defraud his creditors, or to avoid the service of a summons; or keeps himself concealed with the like intent.” We think the affidavit was insufficient. In Thompson v. Later, 10 N. Y. Supp. 613, it was said: “Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others; and some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them.” In Morris v. Talcott, 96 N. Y. 107, it was said: “A party, therefore, relying upon the establishment of a cause of action or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt, in-order to maintain his claim.” We are therefore of the opinion that