Hyperlawhypertext legal database Moritz v. Kaliske 31 Abb. N. Cas. 49

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Moritz v. Kaliske

31 Abb. N. Cas. 49 Court N. Y. Supreme Court, Special Term, First District; English

Delivered by Patterson, J.

Contents

Majority

p. 49
MORITZ v. KALISKE.
N. Y. Supreme Court, Special Term, First District;
October, 1893.

Headnote

Creditor’s suit.] An attaching creditor, before he has recovered judgment, may maintain an action in aid of his attachment, where-the debtor has fraudulently disposed of his property; and in-such action may enjoin the removal of the property from the jurisdiction of the court, when danger of such removal is. shown.[1]
Following People ex. rel. Cauffman v. Van Buren, 136 N. Y. 252 .
p. 50
Motion to continue an injunction.
Action in aid of an attachment by Henry Moritz against Joseph Sachs Kaliske, Theodore Kaliske and others.
The complaint alleged in'substance, that plaintiff had commenced an action on September 21, 1893, against the defendant, Joseph S. Kaliske, upon his note for $5,262.50, in which an attachment had been granted (upon the ground that defendant had assigned and disposed of his property with intent to defraud his creditors), and levied upon the interest of Joseph S. Kaliske in certain dongola kid skins or their proceeds in possession of the sheriff under executions issued against the defendants, Theodore Kaliske and Charles S. Kaliske; that on or about Aug. 7, 1893, prior to the commencement of the action upon the note, under a conspiracy and with intent to defraud creditors, Joseph :S. Kaliske transferred, and Theodore Kaliske and Chas. S. Kaliske received the dongola skins; that on Aug. 31, 1893, the defendant, William Vogel, obtained a judgment by confession against Theo. Kaliske and Chas. S. Kaliske for $4,576.61, and on August 31, 1893, the defendants, Sara :S. Kaliske, Fabian S. Kaliske and Theodore Kaliske, as ■executor of Alexander S. Kaliske, deceased, also obtained a judgment by confession against Theodore and Chas. S. Kaliske for $7,110.51 ; that under executions upon such judgments the defendant, John J. Gorman, as sheriff, had seized and sold the dongola skins so fraudulently transferred, and was about to pay over the proceeds to the judgment creditors ;■ and that Joseph S. Kaliske was wholly insolvent and had no other property which might be attached.
Upon the' complaint and affidavits in support thereof, the ex parte injunction, which is sought to be continued,
p. 51
was granted, enjoining the defendants from paying over, assigning or transferring the proceeds of the dongola skins.
H. M. Requa, Jr., for the motion.
Jared F. Harrison, opposed.

In People ex rel. Cauffman v. Van Buren ( 136 N. Y. 252 ) the Court of Appeals has settled i.n the affirmative the theretofore much debated and very doubtful question of the right of an attaching creditor to maintain a suit in aid of his attachment and to enforce the lien thereof, where the debtor has fraudulently disposed of property. It is also held, that in such a suit a plaintiff is not a mere creditor at large, but has a lien, and may enjoin the removal of property of the debtor from the jurisdiction of the court when danger of such removal is shown. The averments of the complaint in this action bring it directly within the principle of the decision referred to, and on an examination of the affidavits submitted on this motion, I think sufficient is disclosed to require the continuance of the injunction pendente lite, and until a full and thorough investigation of the whole case may be had upon the trial.

On the plaintiff giving an undertaking in an amount to be fixed on the settlement of the form of the order, the injunction will be continued until the hearing and decision of the cause.

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