6 N.Y.S. 318 | N.Y. Sup. Ct. | 1889
'The action was commenced in May, 1888, to recover the
amount of a promissory note made by the Bushwick Chemical Works, for the payment of the sum of $7,326.91, in four months after the 1st of July, 1886. The note was indorsed and transferred to the plaintiff, and on or about the 24th of January, 1889, the plaintiff applied for and obtained an attachment in this action against the Bushwick Chemical Works, on the ground that it had disposed of its property with intent to defraud its creditors. To sustain this allegation it was made to appear that the Buffalo Chemical Works had brought an action and recovered a judgment against the Bushwick Chemical Works for the sum of about $95,000, stated to be unpaid upon 19 promissory notes made by the Bushwick Chemical Works. These notes were shown, in support of the, application, to have been made for the use and accommodation of the Buffalo Chemical Works, the corporation which recovered the judgment upon them. That appeared by an agreement to which the company was a party, and in which the notes were stated to be the indebtedness of the Buffalo Chemical Works, and, as such, the judgment recovered by that company .against the Bushwick Chemical Works, upon the notes, was fraudulent as to the rights and interests of other creditors. And through the instrumentality of such a judgment the property of the debtor may be fraudulently transferred or disposed of as effectually as by an instrument executed by the company for the purpose of directly attaining that end. Decker v. Decker, 108 N. Y. 128, 15 N. E. Rep. 307. It was at least an attempt or an act by which the property of the defendant in the action might be fraudulently disposed of, and it has been made a ground for an attachment against the property of a domestic corporation, as the Bushwick Chemical Works is shown to have been, that it either has or is about to dispose of or assign or secrete its property with intent to defraud its creditors. Code Civil Proc. § 636, subd. 2. It has, however, been objected that this attachment was defective in not reciting the true grounds upon which it was issued, as that has been directed by section 641 of this Code; and in this recital the attachment is undoubtedly irregular, for it has recited the fact to be that the Bushwick Chemical Works had disposed of its property with intent to defraud its creditors, instead of reciting, as the fact was, that it was about to dispose of its property, by means of this fraudulent judgment, to defraud its creditors. But in the notice of motion to vacate the attachment no reference was made to this irregularity, as that has been required by rule 37 of the general rules of practice to entitle a party to take advantage of it.
The affidavit was made by the attorney upon which the attachment was issued, and the further objection has been urged, in support of the appeal from the order denying the motion to vacate the attachment, that this affidavit failed to establish the indebtedness as that has been- required to justify the issuing of an attachment. But the note itself, upon which the action has been brought, was in the possession of the attorney, and, at the time when the application was made for the attachment, the defendants who were sued in the action, including the Bushwick Chemical Works, had made default, and the plaintiff-had become entitled to enter judgment for the full amount for which the note had been given. This was a practical concession on the part of the maker of the note that it was a legal obligation against it for the payment of the debt mentioned in the note, and that no part of that debt had been extinguished or satisfied, either by payment or otherwise. In addition to this circumstance it further appeared that a receiver had been appointed of the property and