Jonasson v. Herrick — 126 A.D. 827

Majority

p. 827

Joseph Jonasson, Respondent, v. Frederick J. Herrick and Grace Herrick, Appellants.

First Department,

June 5, 1908.

Headnote

Attachment — goods purchased with stolen money — moving papers insufficient.

In order to justify the granting of a warrant of attachment it is essential that the plaintiff show by affidavit that one of the causes of action specified in section 635 of the Code of Civil Procedure exists in his favor.

A plaintiff suing a husband and wife to recover moneys embezzled by the former is not entitled to attach chattels in possession of the wife on the theory that with her knowledge they were purchased with the fruits of the husband's crime, when no facts are alleged tending to show that the chattels sought to he recovered from the wife were purchased with any part of the money embezzled by the husband.

An allegation of plaintiff's belief unsupported by facts is insufficient.

Appeal by the defendants, Frederick J. Herrick and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of March, 1908.

R. M. S. Putnam, for the appellants.

I. Gainsburg, for the respondent.

The defendants appeal from an order denying their motion to vacate an attachment. The defendants are husband and wife. Frederick J. Herrick was formerly plaintiffs bookkeeper, and

p. 828

embezzled from bis employer a large sum of money, for which he was indicted, plead guilty, and is now serving a term in prison.

The purpose of the attachment is to reach certain articles of furniture and jewelry in the possession of - Grace Herrick, the theory of the action being that they were purchased with the fruits of Frederick J. Herrick’s crime; that his wife knew whence the money came with which they were purchased ; that the plaintiff is entitled to recover them and that the defendant Grace Herrick is guilty of conversion in refusing to give them up. There is absolutely no evidence of the essential facts to sustain such an action. In order to justify the granting of a warrant of attachment it is essential that the plaintiff shall show by affidavit that one of the causes of action specified in section 635 of the Code of Civil Procedure exists in his favor,^[1] and when -the facts alleged wholly fail to show that such a cause of action exists the attachment necessarily falls. In the present case there is not alleged a single fact tending to show that the articles sought to be recovered from the possession of Grace Herrick were purchased with any part of the money embezzled by her husband, or even during or since the period covered by such embezzlement. There is only a statement of plaintiff’s belief,, unsupported by any fact. ■ Of course an action will lie against Frederick J. Herrick, but no ground for the issuance of an attachment against him is stated. •

The order must be reversed, with ten dollars costs and disbursements, and the motion granted.

Ingbaham, McLaughlin, Clabke and Houghton, JJ., concurred.

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

* See Code Civ. Proc. § 686, subd. 1.-—[Rep.