Smith, Perkins & Co. v. Wilson

28 N.Y.S. 212 | N.Y. Sup. Ct. | 1894

BRADLEY, J.

The objections made to the warrant of attachment- are (1) that it fails to state the ground upon which it was issued; (2) that the affidavits are insufficient to authorize or support it. The recital in the attachment, of the grounds, is that “the said defendants have assigned, disposed of, or secreted their property, with intent to defraud their creditors.” It is said that this alternative statement does not specify which of the causes so recited is the one upon which the process was issued, and therefore the requirement of the statute in that respect is not observed. (Jode Civ. Proc. § 641. This has been the subject of consideration in several cases since the enactment of the provisions of that section. Rothschild v. Mooney (Sup.) 13 N. Y. Supp. 125; Dintruff v. Tuthill, 62 Hun, 591, 17 N. Y. Supp. 556; Garson v. Brumberg, 75 Hun, 336, 26 N. Y. Supp. 1003; Cronin v. Crooks (Sup.) 27 N. Y. Supp. 822. In none of those cases is it determined that a recital like the one in question is insufficient. Among the grounds specified as essential to an attachment are those that the defendant has removed, or is about to remove, property from the state with intent to defraud his creditors, “or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent.” Code Civ. Proc. § 636. In the Cronin Case the recital in the attachment was that the defendant “has assigned and disposed of, or is about to assign or dispose of, her property with intent to defraud her creditors.” This disjunctive union of the two grounds was held bad, and not such as to support the attachment. But it was there remarked that a statement that the defendant had assigned or disposed of property with intent to defraud her creditors would have been a compliance with the statute, as would also have been the recital that she was about to assign, secrete, or dispose of her property with such intent. In the Rothschild Case an attachment having a recital similar to that in the Cronin Case was sustained. In Bintruff v. Tuthill the recital was that the defendant had re moved, or was about to remove, property from the state with intent to defraud creditors, or had assigned, disposed of, or secreted, or was about to assign, dispose of, or secrete, his property with the like intent. This was a statement in the alternative of distinct classes of the causes for which a warrant of attachment could be granted; and it was held that, by thus disjunctively reciting them, neither was designated as ground upon which it was issued, and for that reason there was a failure to comply with the requirement of section 641, before mentioned. In the present case the recital is of one class, only, of the grounds, as they are arranged in section 636; and the same state of facts presented by affidavits may consistently, in supposable cases, be applicable to, and permit inferences in support of, each of the causes so recited. And, within the rule stated in Garson v. Bromberg, the statement of the grounds must be deemed efficiently made in the attachment. A careful examination of the affidavits leads to the conclusion that they are sufficient to support it. The order should therefore be affirmed. All concur.