Head v. Wollner

6 N.Y.S. 916 | N.Y. Sup. Ct. | 1889

Hardin, P. J.

Plaintiffs obtained an attachment January 24, 1889, upon the ground that defendant kept himself concealed to avoid the service of a summons. Section 636 of the Code of Civil Procedure requires the party obtaining an attachment on such ground to show by affidavit to the satisfaction of the judge granting the same that the defendant keeps himself concealed with intent to avoid the service of a summons. The affidavit must make legal proof so as to judicially satisfy the officer who is called upon to issue an attachment. Mott v. Lawrence, 17 How. Pr. 559. Because the defendant was not found at his place of business where the agent of plaintiffs called on the 22(1 of January or on the 23d of January did not establish concealment, nor intent to conceal, to avoid service of a summons. Towsley v. McDonald, 32 Barb. 608; Wallach v. Sippilli, 65 How. Pr. 501; Castellanos v. Jones, 5 N. Y. 164. Ambiguous declarations or acts which are susceptible of an honest purpose as well as of an intent to avoid service do not authorize an attachment. The purpose to accomplish a concealment with intent to avoid service of a sum-mans is the ground mentioned in the statute, and it must be made clearly and positively to appear by the facts. They must be clearly and positively shown. Hot by information and belief unless the sources of such information and belief are clearly shown. Bank v. Alberger, 78 N. Y. 252; Andrews v. Schwartz, 55 How. Pr. 190. If the defendant was out of his store collecting, or had gone down town on business, as was stated to the plaintiffs’ agent, then he was engaged legitimately and such engagement did not indicate an intent to avoid service of summons. Sickles v. Sullivan, 5 Hun, 569. In Genin v Tompkins, 12 Barb. 267, there was an actual concealment for nine hours shown, under circumstances warranting an inference therefrom that the defendant intended to avoid service of summons; and in that case no member of his family, “no person in his employment, knew where he was” while he was concealed in Kipps’ tavern. Where the statements as in this case are intrinsically innocent they do not establish the intent required by the statute. Evans v. Warner, 21 Hun, 574. The belief of the affiant that the defendant was concealed with intent to avoid service of summons is not sufficient. Facts tending to prove it were not sufficiently stated, so that it might be judicially determined that such was the intent of the defendant. Stevens v. Middleton, 26 Hun, 471. Conjectures, surmises, and suspicions are not sufficient. Herman v. Doughty, 15 Wkly. Dig. 94. In that case it was said, viz.: “The proof should be of such a character as to fairly justify no other construction and dishonest purposes on the part of the defendant.” Appellants call attention to Schoonmaker v. Spencer, 54 N. Y. 366. That was a case involving the validity of an attachment issued by a justice of the peace, and rested upon facts and circumstances tending to show the defendant had left the county and state with intent to defraud his creditors, and, as the facts fairly called for a judicial conclusion that such was the intent of the defendant, the attachment was upheld. We see nothing in the case which sustains the sufficiency of the affidavits before us. Inasmuch as the motion was made upon plaintiffs’ papers used to obtain tlie attachments the plaintiffs were not at liberty to use further or other supporting affidavits. Bank v. Alberger, 75 N. Y. 185. We must sustain the order of the special term. Order affirmed, with $10 costs and disbursements.

Martin, J., concurs.