Lehmaier v. Buchner, 43 N.Y.S. 438

Lehmaier v. Buchner

43 N.Y.S. 438 | N.Y. App. Div. | 1897

Ingraham, J.:

The attachment was granted upon.the ground that the defendant, a resident of this State, has assigned and disposed of his property with the intent to defraud his creditors, the affidavit to prove such fraudulent assignment and disposition of liis property being made by one of the plaintiffs, Albert Sichel. In his affidavit he makes certain statements as to the acts of the defendant, as to the organization of a company by the defendant, as to the intention of the defendant in organizing the company, and as to the acts of the defendant in making transfers to the company. There is no intimation in this affidavit as to the sources of the affiant’s knowledge, as to his opportunity of ascertaining the intention -of the defendant, *264the condition of his property or its value, nor as to the amount of his indebtedness. There is hardly an allegation in the affidavit which is a distinct statement of a fact, all of the statements being conclusions or expressions- of opinion, or statements of the intentions of the defendant, with nothing to show upon what such conclusions are based, or how the affiant ascertained the defendant’s intentions. It is impossible for us to conceive how this plaintiff should have had personal knowledge as to the assets and liabilities of the defendant. • It might be that the defendant had made a statement to him as to the amount of his assets or liabilities. It might be that he had seen a stock of goods in the defendant’s store which he would estimate as of the value stated, or that in some other way he had béen told, or had ascertained facts upon which his' conclusions are based, but we are entirely in the dark as to how he arrives at the conclusions stated and how his statement of such assets and liabilities, without any statement of the method by which he obtained this knowledge, can be said to be competent evidence of the fact that the. defendant' had in his possession at any time the assets, or that he owed the amount stated.. So it is not stated how the affiant knew that the defendant caused a corporation to be incorporated. It is not stated that this affiant ever saw the certificate of incorporation, nor is the said certificate annexed to the affidavit. The affiant also states that two of the incorporators had no actual pecuniary interest in the- pretended incorporation, and merely allowed the use of their names for the ¡accommodation of the defendant and the accomplishment of his unlawful purpose to defraud his creditors. How the affiant could know of this fact it is.a little difficult to conceive. He states no fact of which he has personal knowledge which would lead him to this conclusion, but boldly states a conclusion without stating anything to¡ justify it. His affidavit then states that the defendant caused all of his property and effects to be transferred to the said corporation. How he knows this is not stated. In fact, there is nothing stated to justify the granting of this warrant based upon the personal knowledge of the defendant; nothing but his conclusions, surmises and suspicions, without stating any fact upon which he bases them, or upoii which the court can determine whether or not they are justified.

A creditor may have knowledge oí ¡statements made by his debtor *265as to liis assets and liabilities. He may have knowledge of statements made by the debtor’s representatives or employees. He may have knowledge of his debtor’s credit in the business in which he is engaged. He may have some knowledge of the amount of stock a debtor is carrying, but there is certainly no presumption that every creditor has personal knowledge of the amount of the assets or liabilities of a debtor. On the contrary, it would seem that no third party not an employee, or liming some confidential relation to a business firm, could possibly have knowledge of the exact amount of the firm’s liabilities or its assets; and when such a person comes into a court of justice to obtain relief, which is based upon the extent of a debtor’s assets and liabilities, something more is required than that he should merely swear to the amount of such assets and liabilities, or swear to the debtor’s intentions in the doing of certain acts, without showing how his knowledge is acquired, or upon what he bases his conclusions.

We think that this affidavit was entirely insufficient to justify an attachment, and that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.