5 How. Pr. 437 | N.Y. Sup. Ct. | 1850
By the last clause of section 219 of the Code, “ where during the pendency of the action it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.” This injunction must have been granted under this provision. The affidavit, however, states that the attorney believes that the assignment wall render the judgment ineffectual. But to bring it within that part of the section, the act, I think, must be done during the litigation, and in violation of the plaintiffs’ rights respecting the subject of the action (Hovey v. McCrea, 4 How. Pr. R. 31). No facts tending to show this, are stated, nor could well be in a suit on a note. The affidavit is wholly insufficient on this last clause. It does not show' that any action was pending; nor does it show that the defendants threatened to remove or dispose of their property with intent to defraud their creditors; nor that they were about to do so. It discloses no fact except that one of the defendants stated to the plaintiffs’ attorney that they were unable to pay their debts and would assign their property; and they would not secure the claim of the plaintiffs in preference to others. It further adds, that the defendants have enough to pay their debts if they were disposed to do so.
The commencement of a suit (if one had been commenced) gave the plaintiffs no lien upon the property of the defendants, much less were the defendants guilty of fraud within the meaning of this statute, because they would not pay the plaintiffs on demand before the suit, and in preference to every other creditor. Such a construction would make a debtor guilty of fraud, if he
The motion must be granted with costs.