3 N.Y.S. 852 | N.Y. Sup. Ct. | 1889
The attachment in this case was issued on the ground that the-defendants had fraudulently disposed of their property with intent to defraud their creditors. The motion to vacate it was made upon the papers upon which it was granted. Three affidavits were presented for the consideration of the court,—one of them made by Edward J. Chaffee, another by Lionel R. Geisenberger, and the other by John J. Morris. Mr. Chaffee, one of the plaintiffs, states that prior to the 2d May, 1887, the defendants were engaged in the business of manufacturing cloaks, etc., in this city; that the defendant Rosalie Herman was represented by her husband, Isadore Herman, who conducted the transactions on her behalf with the firm; that on the 20th of April, 1887, Isadore called on him, and, stating that he was a little short, of funds, requested that a check dated ahead be accepted for the amount of the bill then due; that Isadore then stated that the defendants were amply responsible, doing a good business, and that it was a simple matter of accommodation to have the payment of the bill in question postponed for a day or
We have held in the case of Fleitmann v. Sickle, and Cœsar v. Same, 13 N. Y. St. Rep. 399, that in applications of this character, where charges of fraudulent representation and fraudulent appropriation of property are mingled, the attachment will not be upheld unless over and above the charge of fraudulent representations it appears that the ground upon which the attachment was .granted, namely, the fraudulent appropriation of property to-defeat creditors, is sustained by satisfactory evidence. In these cases the-starting, if not the controlling, point was the misrepresentation of the defendant as to his indebtedness, which he underestimated; and that incident had a. guiding influence upon the court granting the attachment, as the fraudulent representations herein asserted seem to have had upon the court below. The-present case, and the cases cited, however,-are kindred only in this: they both show satisfactorily that misrepresentations were made, and that there was a failure of proof of the fraudulent appropriation of property, indeed, a failure-of proof that the defendants had it as represented. The learned counsel for-the respondents have referred to a class of cases in which it has been held,, perhaps, that evidence of a sudden and unexplained disappearance of property,, particularly when accompanied with specific allegations of removal and disposition of it, puts the defendant to his answer and establishes a prima, faciecase for an attachment. Assuming that these cases establish the proposition-contended for, they have no application here, for the reason that they are predicate of the possession of the property asserted to have been owned by the-debtor, and of which there was evidence. The proof submitted [n this case-does not establish a similar-state of facts. It does not appear except by their representations that the debtors had property to the amount asserted by thern. The difference between representations as to property and the actual ownership thereof must, in cases of this character, be kept constantly in mind in-considering the charge of the fraudulent disposition of property. If it satisfactorily appeared that the defendants’ representations as to property possessed by them were true, a sudden and unexplained appropriation of it, apparently wrongful, and also satisfactorily shown, would have its relative-merit on the charge of improper disposition of it; but both factors must be-established by evidence if they are to be employed jointly to procure an attachment. Fraud is not to be presumed; it must be proved. The presumption would be in favor of the honest use of the property, unless overborne by the facts and circumstances disclosed. The vicissitudes of business often invoke insolvency in a day, and honest merchants become bankrupt in the same-time by the occurrence of one of the various and destructive disclosures which* mark the period as one of danger in the credit realm. The order appealed from must be reversed, and the motion granted, with $10 costs and disbursements. All concur.