Taylor Packing Co. v. Bolitho — 162 A.D. 555

Majority

p. 555

The Taylor Packing Company, Respondent, v. William Y. Bolitho, Appellant.

First Department,

May 15, 1914.

Headnote

Attachment — insufficient moving papers.

Motion to vacate a warrant of attachment for insufficiency of moving papers. The plaintiff alleged, solely upon information and belief and without stating the sources of the information, or any facts justifying the charges, that the defendant, employed as a bookkeeper, wrongfully kept certain slips showing the receipt of money, which money he afterwards embezzled, etc. Held, that the papers were insufficient to justify the warrant of attachment and that it should be vacated.

Appeal by the defendant, William Y. Bolitho, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1914, denying a motion to vacate a warrant of attachment for insufficiency of the moving papers.

August C. Streitwolf, for the appellant.

Felix A. Donnelly, for the respondent.

The affidavit upon which the warrant of attachment was heretofore issued herein was that of Willard B. Taylor, the treasurer of the plaintiff, which is a foreign corporation. He set forth that the defendant had been in the employ of the

p. 556

plaintiff for upwards of two years as a bookkeeper, and in such capacity had charge of the books of said company and received certain slips from its drivers representing cash sales, it being his duty to enter the amount thereof upon the books of the company, which, when the total of the entries was made, should equal the total sums received in cash from the drivers. It is then alleged upon information and belief that, instead of filing said slips, the defendant wrongfully kept them himself, and that the aggregate sum represented by said slips amounted to $10,000; that thereafter the defendant wrongfully went to the safe belonging to the company, to which he had no right of access, and abstracted therefrom moneys of a sum corresponding to the total amount of slips retained by him, to wit, the sum of $10,000; and that the defendant has wrongfully converted the same to his own use. For the charge thus made upon information and belief, the source of information is not disclosed, nor any facts set forth which would justify the charge thus stated. The only specific fact alleged, also stated upon information and belief (the source being disclosed as the brother and cousin of the deponent), is that on December 30, 1913, the defendant opened a safe belonging to the plaintiff and abstracted therefrom moneys to the amount of $6.25, some of which was marked, and being afterwards found upon the person of the defendant, he admitted the unlawful taking of this money from the plaintiff company’s safe. It further appears that when the said Taylor swore out a warrant for the arrest of the defendant at Atlantic City, N. J., he charged him with the embezzlement and conversion of $65 only.

The papers submitted upon the application for the original warrant of attachment were entirely insufficient to justify the granting thereof, and the order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the warrant of attachment will be granted, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

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