J. H. Mohlman Co. v. Landwehr

87 A.D. 83 | N.Y. App. Div. | 1903

Hirschberg, J.:

The judgment was entered by default as provided by section 91 of the Municipal Court Act of the city of New York (Laws of 1902, chap. 580). This is substantially the same provision as is made by section 2918 of the Code of Civil Procedure for the government óf Justices’ Courts, and requires that the court shall proceed to hear and determine the action, where the defendant has not appeared, and the summons has not been personally served upon him, but his property has been duly attached by virtue of a warrant which has not been vacated. In this case the summons was not personally served, and the defendant did not appear, but an attachment was issued, the validity of which, however, is denied by the appellant, on the ground that the affidavits upon which it was issued were insufficient to authorize it. In such .case the court would be without jurisdiction to enter judgment against the defendant by default. (Kingsford v. Butler, 71 Hun, 598.)

I think the affidavits were insufficient. The ground of. the attachment is that the defendant had disposed of his property with intent, to cheat and defraud his creditors. The affidavits were verified on February 13, 1903, and established the fact that on the day before (February twelfth) the defendant’s store was closed, with a notice posted in the window as follows: “ Will open under new management within three days,” signed “ Sam. Lipsehitz.” A man was seen inside arranging and “ lotting up ” the stock-as if for an auction. In the evening of the twelfth one of the affiants, haying gained access to the store, was shown by the person in charge an “alleged bill of sale” of the stock from /Samuel Lipsehitz to Arnold Tuck for a nominal consideration. It further appeared that the defendant was indebted to various persons, that the stock of goods was all his property, and that on inquiry at his boarding house parties were told that he had gone away and would not return. There was no evidence whatever as to the manner^in which the defendant had disposed of the stock of goods or on what terms and no fact or circumstance disclosed tending to indicate that such disposition was with the fraudulent intent of cheating creditors other than may be inferred from the facts stated. Yet if it be assumed that the defendant did sell the stock to Lipschitz on or prior to February twelfth, nevertheless, as all the suspicious acts of the vendor or of his vendee which have been noted were subsequent to such sale, they must be regarded as physically consistent with the receipt by the defendant of the full value of the property and with the intent on his part to apply the proceeds in good faith to the payment of his debts. The burden of proving a fraudulent intent is with the party applying for the writ, and circumstances which may create a strong suspicion but yet fall short of prima facie proof are not sufficient. (Thompson v. Dater, 57 Hun, 316 ; 32 N. Y. St. Repr. 361; Bump v. Dahetvy, 36 id. 114.)

The plaintiff obviously relied chiefly upon certain allegations in the affidavits which were designed tó show that the disposition by the defendant of his property was in violation of the provisions of chapter 528 of the Laws of 1902, entitled “ An act to regulate the sale of merchandise in bulb.” By the terms of that act a sale of any portion of a stock of merchandise other than in the ordinary course of trade in the regular and usual prosecution of the seller’s business, or the sale of an entire stock of merchandise in bulk, is declared to be fraudulent and void as against the creditors of the seller, unless at least five days before the sale the seller and purchaser do certain things not necessary to particularize in this opinion. That the defendant and his assumed purchaser did not do the things required by the act in question is averred in the affidavits, but it is evident from the nature of the acts as well as from the language of the affidavits that the assertion is not based upon personal knowledge. The situation of the parties is not such as to create a presumption of knowledge and no sources of information are disclosed. The affidavits in this respect are, therefore, manifestly insufficient. (Mechanics & Traders' Bank v. Loucheim, 55 Hun, 396; 29 N. Y. St. Repr. 188; Crowns v. Vail, 51 Hun, 204; Kokomo Straw-Hoard Co, v. Inman, 53 id. 39; Tim v. Smith, 93 N. Y. 87, 91.) Moreover, assuming that the act in question is constitutional, the fraud is one which is declared by statute and not the actual and intentional fraud contemplated by the Code as ground for an attachment. The weight of authority in this State is to the effect that the provisions of the Code (§ 636) in- this regard relate to a - moral rather than to a constructive fraud. (Belmont v. Lane, 23 How. Pr. 365 ; Milliken v. Dart, 26 Hun, 24 ; Casola v. Vasques, 147 N. Y. 258.) In other words, there must be an actual or intended fraud in order to authorize an attachment, and not merely one declared to be such by statute because of the omission of certain specified formalities.

The defendant moved to vacate the attachment in the Municipal Court, and the motion was denied. The order is under review on this appeal. The judgment should be reversed, with costs, and the attachment vacated and the complaint dismissed, under section 90 of the Municipal Court Act (supra). ,

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed, with costs, and the attachment vacated and the complaint dismissed.