43 N.Y.S. 469 | N.Y. App. Div. | 1897
If the case for an attachment here rested solely upon the testimony referred to by the learned judge at. Special .Term, we would have no hesitation in affirming- the order appealed from. But there is other testimony, not referred to in the opinion, which, we think, leads to a different conclusion from that arrived at below. That testimony is substantially as follows : Upon, the 7th day of July, 1896, the defendant informed the plain tiff that he owed but $800 and that his assets amounted to $30,000. Of this latter sum he said that $20,000 was made up of merchandise arid the remainder of cash and bills receivable. There is no suggestion that this statement wTas false; on the contrary, the plaintiff affirms that it was true, and he supports its truthfulness in an important particular by the affidavit of one Kastenbaum, who deposes that on the 5th day of August, 1896,, the defendant told him that his assets then aggre-. gated at least from $22,000 to. $25,000. ' Of this the defendant declared that about $5,000 was in cash ¡and some $15,000 in jewelry and diamonds. He at that time exhibited to Kastenbaum a large amount of money, consisting of bills in denominations of $50 and $100, as well as gold, and also exhibited the jewelry and diamonds. We may fairly conclude upon all this evidence that the defendant’s original statement to the plaintiff was; quite true. At all events, a prima faeie case establishing the facts thus admitted is made out. The defendant’s condition upon the 7th -day of July, 1896, being thus proved, it further appears that less than two months later, namely, on or about the 28th of August, 1896, he was or declared himself to be insolvent. Upon the latter day he made a preferential assignment-for'the benefit of creditors. It-also appears that prior to the assignment he carried on a retail jewelry and diamond business,
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice, on payment of these costs, to such an application upon affidavits as the defendant may be advised to make.
Yan Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice, on payment of these costs, to such an application upon affidavits as the defendant may be advised to make.